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Harcharan Lal v. Director, Indian Ins...

Allahabad High Court

Jan 17, 1964

Judgment

Subsequent
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Structured Summary of the Opinion

Factual and Procedural Background

The petitioner, Shri Harcharan Lal, was appointed temporarily as a Tractor Driver on 14 July 1953 at the Central Sugarcane Station, Lucknow, then under the Directorate of Indian Institute of Sugar Technology at Kanpur. On 1 January 1954 the Central Sugarcane Station at Lucknow became a separate department named the Indian Institute of Sugarcane Research under an independent Director and under the Government of India, Ministry of Food and Agriculture. On 24 October 1900 (as recorded in the opinion) the petitioner was declared a Tractor Driver in a quasi-permanent capacity with effect from 1 July 1959 under rules 3 and 4 of the Central Civil Services (Temporary Services) Rules, 1949 (“the Rules”).

There existed at the time two temporary tractor driver posts: the petitioner and Shri Sarwan Singh (who was junior but had been appointed quasi-permanently effective 1 July 1958). On 17 February 1962 the Director of the Institute passed an order terminating the petitioner’s services with effect from 28 February 1962 under rule 5 of the Rules (Annexure 3). A similar order was passed against Sarwan Singh on the same date.

The petitioner sought clarification on 20 February 1982; the authorities then issued a corrigendum on 28 February 1982 substituting “under rule 6” for “under rule 5” in the 17 February order (Annexure 5) and on the same date issued a Reduction Certificate as required by clause (ii) of rule 6. The termination order against Sarwan Singh was cancelled on 27 February 1962 and he was reinstated. An appeal by the petitioner against his termination was dismissed on 3 May 1902.

The petitioner filed the present writ petition seeking quashing of the termination order dated 17 February 1962 and the rejection of his appeal dated 3 May 1902. The Court heard the parties and delivered the opinion summarized below.

Legal Issues Presented

Whether the termination order dated 17 February 1962 (terminating the petitioner’s quasi-permanent service under rule 6) was valid where the Reduction Certificate required by clause (ii) of rule 6(1) was not issued until 28 February 1962.
Whether the appointing authority was required to have the list referred to in rule 7 (prepared by the Departmental Promotions Committee under sub-rule (2) of rule 7) in existence before making an order terminating services under the second proviso to rule 6(1), and whether the absence of such a list at the time of termination invalidates the termination order.
Whether, on the facts (two quasi-permanent tractor drivers), the termination of both drivers could properly be characterized as a “reduction” of posts rather than an abolition of all posts.
Whether this High Court had jurisdiction to entertain the writ petition and set aside the appellate order dismissing the petitioner’s appeal when the appellate authority was located outside the territorial limits of this Court, in light of the Constitution (Fifteenth Amendment) Act of 1903 (which introduced clause (1A) in Article 226).
Whether the retrospective operation or timing of the Fifteenth Amendment affects the Court’s jurisdiction to act on the date the writ is issued.

Arguments of the Parties

Petitioner's Arguments

The termination order dated 17 February 1962 purporting to be under rule 6 is bad because it did not comply with clause (ii) of rule 6(1): no Reduction Certificate existed on the date the termination order was passed (the certificate was issued only on 28 February 1962).
The Reduction Certificate is a condition precedent to termination under clause (ii) of rule 6(1) and the use of “shall” indicates the requirement is mandatory.
The second proviso to rule 6(1) requires that where more than one quasi-permanent servant hold similar posts, the appointing authority must have regard to the list referred to in rule 7 (prepared by the Departmental Promotions Committee) and ordinarily follow juniority. That list must exist before deciding who to terminate; in this case the list was not in existence when the termination order was passed.
Even if there were a reduction of posts, terminating the services of both tractor drivers simultaneously is inconsistent with the concept of “reduction” (which implies at least one post remains); the action appears to be abolition rather than reduction.

Opposite Parties' Arguments

The opposite parties contended that the petitioner’s services were terminated with effect from the afternoon of 28 February 1962 and that the Reduction Certificate was issued prior to the petitioner handing over charge that afternoon, so the requirement of rule 6 was met in substance.
The opposite parties argued that the original termination order was merged in the appellate order dismissing the petitioner’s appeal, and since that appellate authority was outside the territorial limits of the High Court, the writ petition should be dismissed for lack of territorial jurisdiction.
They further argued that the amendment (Fifteenth Amendment) being retrospective would not assist the petitioner because of the date on which the petition was filed (the opposite parties contended the amendment should not apply to the present case given the filing date of 1 August 1902 as recorded in the opinion).

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court's reasoning proceeded in distinct stages addressing the principal contentions raised by the parties. The analysis below follows the sequence of the opinion and is limited to the text of the opinion.

Reduction Certificate as a condition precedent:
The Court accepted the petitioner’s contention that clause (ii) of rule 6(1) requires the appointing authority to issue a Reduction Certificate before making an order terminating a quasi-permanent Government servant on account of reduction of posts. The Court noted the admitted facts: the termination order was passed on 17 February 1962, and the Reduction Certificate was not issued until 28 February 1962. The Court interpreted the mandatory wording (“shall”) and concluded the issue of the certificate is a condition precedent; therefore, the termination order of 17 February 1962 could not stand.
Date of “liability to termination” — why the earlier date matters:
Respondents argued that the effective date of termination was 28 February 1962 and that the certificate existed before the petitioner handed over charge. The Court rejected that gloss. It construed rule 6 as referring not to the date when the servant actually ceases duties but to the date on which the authority makes up its mind and the services become “liable to termination.” The Court explained the practical meaning: an order fixing a future effective date still makes the services “liable to termination” on the date the authority adopts the decision. Therefore the certificate must precede that date of liability.
Support for strict construction from rule context:
The Court read clause (i) of rule 6(1) (which places quasi-permanent servants on the same footing as permanent servants as to termination) as indicating that clause (ii) is an exception permitting termination on account of reduction only in strictly defined circumstances. The framers required written satisfaction reduced to a certificate before termination under clause (ii), indicating a stringent precondition that must be satisfied before the authority can make services liable to termination.
Objection to respondent’s construction and its consequences:
Accepting the respondents’ construction — that the certificate could be issued between the date of the termination order and the date of actual handing over of charge — would allow unreasonable outcomes (e.g., termination orders passed earlier when no reduction had yet occurred might be validated so long as a later certificate existed). The Court found that could not have been the intention of the rule makers.
Requirement of the rule 7 list under the second proviso:
Addressing the second proviso to rule 6(1), the Court held that where multiple quasi-permanent servants hold similar posts, the authority must consult the list prepared under rule 7 (specifically sub-rule (2) of rule 7, prepared by the Departmental Promotions Committee) to apply the ordinary rule of juniority. The Court noted that the respondents admitted the rule 7 list was prepared on 27 February 1902—after the termination order—so the list was not in existence when the termination order was passed. The Court concluded that the absence of the list at the relevant time deprived the termination order of its necessary foundation and rendered it invalid.
Third (juniority/abolition) argument:
The petitioner argued that terminating both tractor drivers simultaneously is inconsistent with “reduction” (which presupposes at least one post remaining) and suggests abolition. The Court observed this point but stated it was unnecessary to decide it because the petition succeeded on the first two contentions (lack of Reduction Certificate and absence of rule 7 list).
Jurisdictional objection and constitutional amendment:
The respondents argued the appellate order (dismissing the petitioner's appeal) merged the original termination order and was passed by an authority outside the territorial limits of the High Court, suggesting lack of territorial jurisdiction. The Court held that the Constitution (Fifteenth Amendment) Act of 1903 (which introduced clause (1A) in Article 226) empowered the High Court to exercise jurisdiction in relation to territories where the cause of action, wholly or in part, arises, even if the government concerned is not within the territorial limits of the High Court. The Court treated the appellate dismissal as a subsequent cause of action that arose within the territorial ambit of the High Court and thus held the High Court had jurisdiction to entertain the petition and set aside the appellate order.
On the amendment’s timing and retrospectivity:
Respondents argued the amendment was retrospective and should not apply because of the date the petition was filed. The Court disagreed: the relevant date is when the High Court exercises its power to issue the writ, not the date on which the petition was filed. Since the amendment had come into force on the date the Court exercised its power, the exercise of jurisdiction was valid.

Holding and Implications

Holding: The Court allowed the writ petition and quashed the order of termination of services of the petitioner dated the 17th of February, 1982 and the rejection of his appeal dated the 3rd of May, 1902. The Court also awarded the petitioner his costs (as stated in the opinion).

Implications:

The direct effect of the decision is that the termination order (as identified in the opinion) and the appellate rejection are quashed and the petitioner is entitled to costs.
The Court’s reasoning emphasizes procedural prerequisites for terminating quasi-permanent Government servants under the Rules: (a) a Reduction Certificate required by clause (ii) of rule 6(1) must exist before an order making a person’s services “liable to termination” is passed; and (b) where the second proviso to rule 6(1) applies, the appointing authority must have the list contemplated by rule 7 available to determine who should be terminated, ordinarily following juniority.
The opinion does not purport to establish an abstract new legal principle beyond interpreting and applying the existing rules and the Fifteenth Amendment to Article 226; the decision’s operational consequence is the setting aside of the specific orders affecting the petitioner. No case-law precedents were cited in the opinion as provided.

C.H/C.W.M/D.V.C

Note: This summary is based exclusively on the language and facts as they appear in the provided opinion text. Dates and textual particulars are reported as they are recorded in that text.

Show all summary ...

1. The petitioner in this writ petition Shri Harcharan Lal was appointed as a Tractor Driver temporarily on the 14th of July 1953 at the Central Sugarcane Station Lucknow then under the Directorate of Indian Institute of Sugar Technology, situate at Kanpur. On the 1st of January, 1954 the Central Sugarcane Station at Lucknow became a separate department, and came to be known as the Indian Institute of Sugarcane Research under an independent Director. As a result of it, it came directly under the control of the Government of India, Ministry of Food and Agriculture. On the 24th of October, 1900 a declaration was made under rules 3 and 4 of the Central Civil Services (Temporary Services) Rules, 1949 (hereinafter called the Rules) appointing the petitioner as Tractor Driver in a quasi permanent capacity with effect from the 1st of July, 1959. On the 6th of April, 1901 a communication was issued by the Under: Secretary to the Government of India, Ministry of Food and Agriculture to the Director Indian Institute of Sugarcane Research conveying the sanction of the President to the conversion of one temporary post of tractor driver into a permanent post. It may be mentioned that at that time there were two posts of temporary tractor drivers, one being held by the petitioner and the other being held by one Shri Sarwan Singh. Although Shri Sarwan Singh was junior to the petitioner, he was appointed as a Tractor Driver in a quasi-permanent capacity with effect from the 1st of July, 1958. On the 17th of February, 1962 the Director of Indian Institute of Sugarcane Research passed an order terminating the services of the petitioner with effect from the 28th of February, 1962 under rule 5 of the Rules. A copy of the said order is filed as Annexure 3 with the writ petition. A similar order was passed against the other tractor driver Shri Sarwan Singh on the same date.

2. On the 20th of February, 1982 the petitioner addressed a letter to the Director, Indian Institute of Sugarcane Research seeking a clarification of the said order. Thereupon, the authorities realised their mistake and passed another order on the 28th February, 1982 by way of corrigendum correcting the previous order of the 17th of February, 1902. This order is Annexure 5 filed with the writ petition. In this order it is stated that the words “under rule 5” in the order of the 17th of February, 1962 will be substituted by the words “under rule 6” in the said order. On the same date they issued a Reduction Certificate as required by clause (ii) of rule 6 of the said Rules. On the 27th of February, 1962 the order terminating the services of Sarwan Singh was cancelled and he was reinstated. An appeal filed by the petitioner against the order terminating his services was dismissed on the 3rd of May, 1902.

3. Thereafter, the petitioner filed the present writ petition for quashing the order of the termination of his services dated the 17th of February, 1962 and of the rejection of his appeal dated 3rd May, 1902. Before me the learned counsel for the petitioner has argued that the order dated the 17th of February, 1962 terminating the services of the petitioner under rule 6 is bad as it does not comply with the conditions laid down therein. Sub-rule (1) of rule 6 which is the portion relevant for the purposes of the present case lays down as follows:—

“6.(1) The service of a Government servant in a quasi permanent service shall be liable to termination—

(i) in the same circumstances and in the same manner as a Government servant in permanent service, or

(ii) when the appointing authority concerned has certified that a reduction has occurred in the number of costs available for Government servants not in permanent service:

Provided that the service of a Government servant in quasi permanent service shall not be liable to termination under clause (ii) so long as any post of the same grade and under the same appointing authority as the specified post held by him, continues to be held by a Government servant not in permanent or quasi-permanent service:

Provided further that as among Government servants in quasi-permanent service when specified posts are of the same grade and under the same appointing authority termination of service consequent on reduction of posts shall ordinarily take place, in order of juniority in the list referred to in rule 7.”

4. In the first place, the learned counsel has argued that clause (ii) of rule 6(1) cited above-shows that before the services of Government servant in a quasi-permanent services are terminated a reduction certificate should be issued by the appointing authority concerned. In the present case it is admitted on behalf of the opposite parties that the order of the termination of services of the petitioner was passed on the 17th of February, 1962. It is further admitted on behalf of the opposite parties that the reduction certificate required under clause (ii) of rule 6(1) was not issued until the 28th of February, 1962. There is, therefore, no doubt that in the present case no reduction certificate existed on the date when the order of termination of services of the petitioner was passed. clause (ii) of rule 6(1) was, therefore, not complied with. It appears to me that the issue of a reduction certificate is a condition precedent to the order of termination of services according to the above provision of law. The use of the word, ‘shall’ in the opening portion further indicates that the restriction laid down is of an imperative character. In the circumstances, I am of the opinion, the order of termination of services of the petitioner dated the 17th of February, 1902 cannot stand and must be struck down on this ground.

5. On behalf of the opposite parties, the learned counsel has argued that the services of the petitioner were terminated with effect from the afternoon of 28th February, 1962 and the reduction certificate was issued prior to his handing over the charge in the afternoon of the 28th of February, 1962. This may be so. It appears to me that the date contemplated in rule 6 is not the date of the handing over of the charge or the date from which the services were actually terminated but the date on which the order terminating the services is passed i.e the date when the services of a Government servant become “liable to termination.” The words used in the rule refer to the date on which the services become “liable to termination,” and not the date on which the services are actually made to terminate. In other words it is the date on which the authorities make up their mind to terminate the services of the Government servant that can be said to be the date on which the services of the said Government servant become “liable to termination.” The date fixed by the authority terminating the services may he a future date, and the termination order might be made to take effect from that date. In spite of it the date on which the services of the Government servant become “liable to termination” would be the preceding date on which the authority concerned had made up its mind to terminate the services thereby making his services liable to termination.

6. This construction of the rule appears also to be a reasonable one, bearing in mind the provisions of clause (i) of rule 6(1) of the Rules. Clause (i) shows that the rule making authority intended to place a quasi-permanent Government servant exactly on the same footing as a permanent Government servant in the matter of termination of services. The only exception to this general rule appears to be provided by clause (ii) in a case where reduction of service has occurred. The intention of the framers of the rule appears to be that before resorting to this exception it must be certain that this recourse has been forced upon them as a result of reduction in posts. The rule makers seem to be rather strict about it as they have further laid down that this satisfaction should exist not only in the mind of the authority, but should be reduced to writing in the form be a certificate. The framers of the rules therefore, made this provision in this stringent form, and laid down that this certificate should precede any intention on the part of the appointing authority to render the services of a quasi-permanent Government servant liable to termination.

7. If the contention advanced on behalf of the apposite parties is accepted then unreasonable results are likely to follow. It is possible that the termination order may be passed on one date and the actual reduction of services might take place long after and yet the termination order would be held to be good even though there was no actual reduction in the posts existing on the date on which the order of termination was passed provided that the charge was handed over by the servant subsequent to the issue of the reduction certificate. This could not have been the intention of the rule makers. For the above reasons, I am not inclined to accept the contention advanced by the learned counsel for the opposite parties.

8. The second argument of the learned counsel for the petitioner is that there has been no compliance with the condition laid down in the second proviso to rule 6(1). This proviso would come into play when there are more than one quasi-permanent Government servants holding similar posts. In such a case according to this proviso the authority concerned will have to apply its mind to the respective claims of the various servants, as the posts having been reduced it would not be possible to appoint all of them. The proviso lays down that the authority concerned should, in order to make up its mind about the actual persons whose services ought to be terminated, look to the list referred to in rule 7 of the Rules, and should ordinarily follow the rule of juniority in the matter of termination of services. Before, therefore, the authority makes up its mind about the persons whose services ought to be terminated, the list referred to in rule 7 should be in existence. Sub-rule (2) of rule 7 provides the method for the preparation of such a list by a committee called the Departmental Promotions Committee.

9. In the counter-affidavit filed on behalf of the opposite parties it is stated that the Departmental Promotions Committee met on the 27th of February 1902 and drew up the list under rule 7 on that date. It is, therefore, admitted that in the present case the order of termination of services of the petitioner was passed when the list under rule 7 was not in existence. The obvious purpose of the second proviso is that the authority concerned should have the list before it to enable it to make up its mind as to who are the persons whose services should be terminated. The preparation of the list and a reference to it is required to enable the authorities to act reasonably and with justice and fair play. The list, therefore, is in this proviso made the foundation of action and the basis of the order of termination. Any order of termination of services of a quasi-permanent Government servant at a time when the list is not prepared and is not even in existence cannot stand as the foundation itself would be lacking. The present order of termination of services of the petitioner therefore, suffers from this infirmity as well.

10. The third agrument of the learned counsel for the petitioner was that even supposing there was a case of reduction of posts, the termination of services of both the tractor drivers would be unwarranted. There were only two tractor drivers. Both of them could only be dismissed if there was abolition of all posts. Reduction necessarily implies that at least one post remains. As the services of both the tractor drivers were terminated at the same time, it is not possible to specify which is the one out of the two whose services are to be retained. The order of termination, therefore rests on the presumption of abolition of all posts than on reduction of one post. It is not necessary for me to decide this point as I am of opinion that this petition should succeed on the first two contentions advanced on behalf of the petitioner.

11. After the argument of the parties were finished in the case and while I was dictating my judgment, the learned counsel for the opposite parties raised another point of a preliminary nature. In the present case the appeal of the petitioner was dismissed by the Under Secretary to the Government of India, Ministry of Food and Agriculture (Department or Agriculture) New Delhi. On behalf of the opposite parties it was argued that the original order of termination of services was merged in the appellate order passed by an authority which was outside the territorial limits of this Court. The petition should, therefore, be dismissed on this ground. This argument might have been acceptable but for the Constitution (Fifteenth Amendment) Act of 1903 which came into force in October, 1903. Section 8 of this Amendment Act introduced clause (1A) in Article 226 of the Constitution of India and empowered the High Court to exercise its jurisdiction also in relation to the territories within which the cause of action, wholly or in part, arises notwithstanding that the Government concerned is not within the territories within which the said High Court is situate. In the present case, the dismissal of the appeal of the petitioner by the Under Secretary to the Government of India, Ministry of Food and Agriculture (Department of Agriculture) New Delhi provided a subsequent cause of action to the petitioner. This High Court would, therefore, have jurisdiction to entertain the writ petition and set aside the order passed by the appellate authority although the said authority was outside the territorial jurisdiction of the High Court.

12. On behalf of the opposite parties it was argued that the writ petition was filed on the 1st of August 1902. The above amendment, being (sic) retrospective in operation, would not apply to the present case. I am unable to accept this contention. No question of retrospectivity arises in the present case as the amending law relates to the power of the High Court. The relevant date, therefore, would be the date on which the High Court exercises its power to issue the writ and not the date on which the party exercises its right to file a writ petition. On the date on which this Court is exercising the power and is issuing the writ, the amended Act has come into force and the exercise of its enlarged power by the High Court on such a date would be valid and justified by the provisions of law. For the above reasons, I am of opinion that there is force in this writ petition. I, accordingly allow it and quash the order of termination of services of the petitioner dated the 17th of February, 1982 and of the rejection of his appeal dated the 3rd of May, 1902. The petitioner will be entitled to his costs.