Ajeeb Singh Bakshi v. State Of Haryana Through The Secretary Revenue, Punjab & Haryana High Court, Judgment, Law, casemine.com

Precedent	Rule or Principle Cited For	Application by the Court
State of Bombay (Now Maharashtra) v. F.A. Abraham, A.I.R. 1962 S.C. 794	An officiating appointment does not give a permanent right; reversion to substantive post is permissible and not punitive if it follows terms of officiation.	The Court distinguished Abraham on the facts: in Abraham reversion was permissible for the reasons given there, but here petitioners were not found unsuitable; rather ineligibility was asserted on the basis of later-prescribed criteria.
Dr. Rai Shivendra Bahadur v. Governing Body of Nalanda College, A.I.R. 1962 S.C. 1210	Mandamus requires a statutory duty and a legal right; mere administrative discretion that does not create a legal right cannot be compelled by mandamus.	Cited to outline that petitioners must demonstrate a legal right under statutes/rules to obtain relief; the Court used this to frame the analysis whether petitioners had enforceable rights.
Sukhbans Singh v. The State of Punjab, A.I.R. 1962 S.C. 1711	Probationers/officiating officials have limited rights; Article 311 protections apply only where reduction in rank is by way of punishment; reversion for administrative reasons does not attract Article 311(2).	Used to explain that reversion does not automatically attract Article 311 and to identify the test (whether reversion is punitive). The Court applied these principles to examine whether the instant reversions were punitive.
Divisional Personnel Officer, Southern Railway, Mysore v. S. Raghavendrachar, A.I.R. 1966 S.C. 1929	Reiterates that losing seniority/places is not necessarily reduction in rank; supports Abraham's principles.	Referred to in support of the proposition that reversion/permanent consequences are not invariably punitive; used for comparative legal context.
High Court, Calcutta v. Amal Kumar Roy, A.I.R. 1962 S.C. 1704	Similar to Abraham—reversion or loss of place in seniority is not necessarily a reduction amounting to punishment.	Referred to as part of the authorities clarifying that reversion is not always penal.
S. Avtar Singh Uppal v. The Inspector-General of Police, Chandigarh, 1966 C.L.J. (Pb.) 318	Court enumerated tests: if reversion is non-punitive and without Article 311(2) protections then no cause of action; if punitive and Article 311(2) not complied with, reversion must be struck down; substance-over-form test to determine penalty.	Cited extensively; the Court adopted the approach (totality of circumstances and whether reversion has penal consequences) in deciding that Article 311(2) was attracted in the instant cases.
The State of Punjab v. Ram Singh Brar, R.S.A. 141 of 1965 (13 Sep 1968)	Reversion per se is not punishment; whether it is punitive depends on facts; authority can revert unless the reversion is punitive and Article 311(2) requirements ignored.	Reiterated as support for the test that each case must be examined on facts to see if reversion is punitive; Court applied this test to the present facts.
State of Punjab v. Apar Apar Singh, A.I.R. 1967 Punjab 139	Person officiating in higher rank can be reverted without reason, but if reversion is by way of punishment Article 311(2) applies; examine totality of circumstances.	Used to support the approach that reversion may be administrative but can be punitive in substance; Court relied on this to find penal consequences in these cases.
Mazhar Hasnain v. State of U.P., A.I.R. 1961 Allahabad 316	If an appointment to a rank was by mistake and is corrected, no right is infringed; representations and appeals may affect finality.	Cited for the proposition that correcting an appointment done in error is permissible; Court distinguished it from the present facts where petitioners relied on a later protective government decision.
K. Ananthan Pillai v. The State of Kerala, A.I.R. 1968 Kerala 234 (Full Bench)	Reduction from a higher post that causes serious hardship does not necessarily attract Article 311 if not penal; natural justice may be desirable but not always legally required unless stigma or adjudication of disputed facts is involved.	Used to support the view that administrative reductions may seriously affect persons but do not always attract Article 311; the Court nonetheless held that notice was necessary in these cases because of penal consequences.
Gurbakhsh Singh v. State of Punjab (Civil Writ No. 1430 of 1967)	Reversion to parent department did not attract Article 311 where there was no reduction in rank or penal consequence; suitability and notice considered.	Distinguished by the Court because facts there showed unsuitability; the present cases differed because ineligibility was asserted by application of later criteria and because petitioners had been given protective restoration earlier.
Joginder Singh v. State of Punjab, R.S.A. No. 306 of 1965	Reversion where officer was found unsuitable for higher deputation did not amount to reduction attractting Article 311.	Distinguished on facts: the Court noted that prior decisions where suitability was the ground are not analogous to instant facts where other criteria and prior protective orders were in play.
State of Punjab v. Sukh Raj Bahadur, 1968 S.L.R. 701	Promotions are judged by authorities; reversion upon lack of suitability may not attract Article 311; promotions are not a right.	Referred to in context of deciding whether reversion had penal consequences affecting future promotion chances; Court found the instant reversion did have such consequences.
Prayag Dass Seth v. Secretary to Government U.P., A.I.R. 1968 Allahabad 279 (applied)	Correcting appointments after appeal/revision is permissible; representations can change outcomes.	Cited in relation to the principle that appointments are subject to revision and correction; Court applied it while distinguishing the protective government decision of 22 January 1966.
R.T. Kangachari v. Secretary of State, A.I.R. 1937 P.C. 27 (Privy Council)	Successors in office should not reopen a reasonably acted-upon, honest decision of duly authorised government officials once acted upon and in effective operation.	Applied to hold that the Government's 1966 decision (which had been acted upon and induced withdrawal of a writ) could not be lightly undone in 1968 without just process; supported estoppel/reliance reasoning.
Union of India v. Indo Afghan Agencies etc., A.I.R. 1968 S.C. 718	Government representations relied upon can create enforceable expectations even if not formal contracts; estoppel-like protection when parties act upon government representations.	Relied upon to support the petitioner Ajeeb Singh's reliance on the 22 January 1966 decision and to hold that respondents could not simply cancel that protection without due process.
Sant Ram Sharma v. The State of Rajasthan, A.I.R. 1967 S.C. 1910	Administrative instructions filling gaps in service rules cannot introduce new essential conditions of service after the fact if rules provide otherwise; limitations on retrospective imposition of conditions.	Invoked in argument about whether criteria introduced by government memoranda could be treated as conditions of service and whether they could be applied retrospectively; Court used precedents to conclude retrospective application was improper here.
State of Haryana v. Shamsher Jang Shukla, 1968 S.L.R. 162	Administrative instructions introducing a new qualifying test for promotion (where rules were silent) could not be treated as an enforceable rule to the detriment of affected employees.	Used as persuasive authority that new tests/conditions introduced post facto cannot be enforced to the detriment of employees whose promotions were earlier; supported Court's reluctance to allow retrospective application.
Sat Pal Sharma v. State of Punjab, I.L.R. 1969 (1) Punjab & Haryana	Similar to Shamsher Jang Shukla: administrative imposition of new conditions of service may not be valid against employees if rules provide otherwise.	Referred to in discussion whether Rule 8 left gap for administrative qualification-setting and whether such qualifications could be applied retrospectively; Court held criteria could not be applied retroactively to defeat earlier appointments.
Punjab State v. Mehr Chand, A.I.R. 1969 Punjab 222	When discretion is vested in a particular officer, that discretion should be exercised by that officer personally; following superior's instructions mechanically is not permissible.	Adduced to support the proposition that the Commissioner (appointing authority) must exercise independent judgment rather than blindly follow Government direction; Court found the Commissioner erred in not applying independent judgment and in following the 29 January 1968 direction without hearing petitioners.
Chanan Singh v. The State of Punjab, 1963 P.L.R. 732	Only the designated technical/official authority must apply mind to the facts; ministerial or superior interference is not competent where discretion is vested in a specified officer.	Used as precedent supporting the need for the appointing authority to apply its own mind rather than act under dictation.
Bhim Chand v. The Deputy Commissioner, 1968 S.L.R. 798	If a decision vested in the appointing authority is taken by another authority's dictation, the order is bad in law.	Reinforced the Court's view that the Commissioner must exercise his own judgment and not be a mere instrument of the Government memorandum.
Roshan Lal Gogia v. Financial Commissioner (Civil Writ No. 747 of 1968)	Similar view taken that orders made under dictation or without the appointing authority's true exercise of discretion can be invalid.	Referenced in support of the requirement for independent exercise of discretion by appointing authorities.
State of Punjab v. Hari Kishan Sharma, 1966 P.L.R. 510	Scheme of statutory regimes may allocate initial jurisdiction to subordinate authorities and limit Government's power to substitute its action for that of the designated authority; Government cannot arrogate initial decision-making to itself by executive orders.	Cited to stress limits on Government issuing executive orders that usurp the appointing authority's functions; supported the Court's criticism of Government direction that unduly dictated the Commissioner's decision-making.
Commissioner of Police, Bombay v. Gordhandas Bhanji, A.I.R. 1952 S.C. 16	Principles concerning administrative authority and the proper exercise of statutory discretion.	Referred to for general principle limiting executive overreach into delegated functions; used to support the Court's approach on delegation and exercise of discretion.
M.L. Chopra v. Union of India, 1967 S.L.R. 588	Once protection or benefit is afforded by the administration, reasonable opportunity must be given before depriving persons of that benefit with retrospective effect; natural justice and Article 14 considerations apply.	Relied on to hold that petitioners who had been given protection/restoration in 1966 were entitled to be heard before removal of that protection in 1968.
Ram Kirpalu Mishra v. University of Bihar, A.I.R. 1964 Patna 41	Even where statute does not expressly provide for notice, natural justice may require notice where an order will affect someone prejudicially.	Used to support the Court's conclusion that notice should have been given to petitioners when the Government sought to revive earlier decisions to their detriment.
State of Orissa v. Dr. (Miss) Binapani, A.I.R. 1967 S.C. 1269	Administrative orders that involve civil consequences must be preceded by notice and an opportunity to be heard; natural justice applies where civil consequences ensue.	Applied to conclude that where reversion causes civil consequences (e.g., bar to future promotion), notice and hearing are required; supported finding of Article 311(2) violation.

Bal Raj Tuli, J.:— This judgment will dispose of two writ petitions, Civil Writ No. 1001 of 1968, Ajeeb Singh Bakhshi v. The State of Haryana, and Civil Writ No. 2127 of 1968, Bodh Raj Mehta v. State of Haryana, as they are directed against the same order and both the petitioners involve common questions of law and fact and have been heard together.

2. The petitioner in Civil Writ No. 1001 of 1968 is Ajeeb Singh Bakshi, who was an employee in the Panchayat Department of the Punjab Government in 1955. In October, 1955 or there-about, post of clerk fell vacant in the Commissioner's Office, Ambala, and the petitioner was appointed to that post in accordance with the Punjab Commissioners Subordinate Service Rules, 1941. He was confirmed as a clerk on 1st March, 1961 in the office of the Commissioner, Ambala Division, Ambala. In the meantime he had been appointed as Assistant in the year 1957. In 1959, the Punjab Public Service Commission held a qualifying test for the post of Assistant in the office of the Commissioner and the petitioner qualified in that test. In exercise of the powers conferred by sub-sections 1(b) and 2(b) of section 241 of the Government of India Act, 1935, the Governor of the Punjab made rules regulating the appointments to the Punjab Subordinate Services of District Establishments and the conditions of service thereof. These rules are called the Punjab District Subordinate Service Rules, 1942, and were promulgated on 13th March, 1942 and are still in force. According to Rule 3 of these rules, the appointment to the posts of Superintendent, Head Vernacular Clerk, Head Treasury Clerk and Head Clerk, Colony, is to be made by the Commissioner of the Division. Rule 8 enumerates sources of recruitment for these posts and is as under:—

“8. Appointment of the posts of Superintendent, Head Vernacular Clerk, Head Treasury Clerk and Head Clerk, Colony, shall be made by any one of the methods noted below:—

(i) By the appointment of any member of the service;

(ii) By transfer of a member of a Colony or Settlement Officer or of the Commissioner's Subordinate Service;

(iii) (for the post of Head Vernacular Clerk only) by transfer from the post of District Kanungo or Naib-Tehsildar;

(iv) By transfer of an official serving in the office of the Punjab Government Secretariat or in the Financial Commissioners, Office, or (for the Ambala Division) in the office of the Chief Commissioner, Delhi, and Deputy Commissioner, Delhi, or (for the post of Head Treasury Clerk only) in the office of the Accountant-General.”

3. Rule 10 provides for selection from any of the sources of recruitment mentioned in Rule 8 and is in the following terms:—

“Subject to the proviso in rule 9 relating to the sanction of the Commissioner, when any vacancy occurs or is about to occur in any cadre of the Service, the appointing authority specified in rule 3 may make his selection from any of the sources given in rules 8 and 9 and may elect to consider candidates drawn from any or all these sources. He may for his convenience maintain a list of persons suitable for appointment to any post, but no person shall have any preferential claim to appointment to such post by reason of his name being entered on such a list.”

4. The instructions for the maintenance of list in the Commissioners' Office are contained in para 34 of, the District Office Manual, Punjab, which is under:—

“3.4 Lists of candidates should be maintained in Commissioners' Offices for appointment to the following posts:—

(1) Superintendent in district office.

(2) Head Vernacular Clerk in District offices.

(3) Head Treasury Clerk in district offices.

(4) Posts in his own office.

The Commissioner should keep up these lists with only a sufficient number of candidates to fill up anticipated requirements for two or three years, and should constantly revise lists 1-3 in personal consultation with Deputy Commissioners. The lists should be kept confidential, and it is unnecessary to inform any person that his name has been added to or removed from a list.

Commissioners should note that the claims of suitable district kanungos should be specially considered in selecting candidates for the post of head vernacular clerk. These officials generally have an intimate knowledge of the revenue administration of the district, and if they possess the necessary educational qualifications, including a knowledge of English, their appointment as head vernacular clerk is desirable.”

5. By letter No. 19079-E-54/645 (CH), dated 31st December, 1954, from the Under Secretary to Government, Punjab, Revenue Department, to the Commissioner, Ambala/Jullundur Division, the post of Head Vernacular Clerk was designated as Assistant Superintendent (Revenue and Records) and the post of Head Treasury Clerk was designated as Assistant Superintendent (Treasury).

6. The petitioner's name was brought on the register of candidates for the post of Assistant Superintendent (Revenue and Records) on 11th June, 1960 and he was appointed as officiating Assistant Superintendent (R & R), Deputy Commissioner's Office, Hissar, by order, dated 4th May, 1961, consequent upon the retirement of Shri Jaimal Singh. The order recited “this is a stop-gap arrangement and no rights accrue to him by getting this assignment till the clarification is received from the Government and if the list is drawn by placing him at a different position, he will not have any claim for the present post on the basis of his acting on the post in the present circumstances.” From this order it is quite evident that the appointment of the petitioner as officiating Assistant Superintendent (R & R) was conditional and subject to his reversion from that post.

7. By the order of the Commissioner, Ambala Division, dated 26th October, 1961, Shri Daulat Ram, the senior-most substantive provisional Assistant Superintendent (R & R), was confirmed in the vacancy caused by the retirement of Shri Jaimal Singh with effect from 1st May, 1961.

8. The Chief Secretary to Government, Punjab issued general instructions to all Heads of Departments by letter No. 9129-G/56/3964, dated 4/17th September, 1956 in connection with the procedure to be followed for the selection of officers/officials for promotion to higher posts. In this letter it was pointed out that greater emphasis should be on merit rather than on seniority and it was suggested that a standard of required minimum experience in respect of each kind of higher post should be laid down in terms of years of service in consultation with the Public Service Commission, except in cases, where a reference to the Commission is not required under regulation 5(f) of the Punjab Public Service Commission (Limitation of Functions) Regulations, 1955 and a list should then be drawn up of officers/officials possessing the requisite minimum length of Service, according to the prescribed standard.

9. The case of respondent 2 in the return is that the instructions contained in this letter and the rules were not followed upto 2nd February, 1961 during which period the name of the petitioner had been brought on the register of candidates for the post of Assistant Superintendent (R & R) on 11th June, 1960. On 21st August, 1961, the Commissioner, Ambala Division, circulated a memorandum (confidential/immediate) to all the Deputy Commissioners in his Division in which the Deputy Commissioners were directed to revise the lists of candidates for the post of Assistant Superintendent (R & R) maintained under paragraph 3.4 of the District Office Manual in accordance with the instructions contained in the Chief Secretary's letter, dated 4th/17th September, 1956 (set out above) and this revision was to take place with regard to the candidates who had not been appointed by the 6th February, 1959. In this letter the Commissioner laid down the following minimum required experience for the post of Assistant Superintendent (R & R), Deputy Commissioner's Office:—

(i) Naib-Tehsildar candidates/Sadar Kanungo/District Revenue Accountant and Reader to Deputy Commissioner with two year's service as such.

(ii) Assistant, Deputy Commissioner's office with at least two year's service as such, including one year's experience on the revenue side.

(iii) Stenographer to Deputy Commissioner with two years' service as such.

(iv) Clerk, Deputy Commissioner's office with a total length of service of eight years, including at least two years' experience on the revenue side.

10. The Deputy Commissioner were requested to—

“recommend the names of two officials for the purpose strictly keeping in mind the instructions contained in the Punjab Government letter dated 4th/17th September, 1956. The claims of those officials who are already on the list of candidates but not promoted by 6th February, 1959 should also be considered even though they have been promoted after the above mentioned date and confirmed as Assistant Superintendent (R & R). The character rolls and service-books of the officials concerned should invariably be sent along with the recommendation which must reach this office within ten days of the issue of the communication.”

11. It is thus evident that the Commissioner for the first time prescribed the minimum required experience for the post of Assistant Superintendent (R & R) on 21st August, 1961, and the petitioner fulfilled the prescribed qualifications. The Commissioner prepared a list on 20th October, 1961 and sent it to Government for approval. The name of the petitioner from that list was dropped by the Government.

12. On 4th January, 1963, the Deputy Secretary, Revenue, conveyed to the Commissioner, Ambala Division, the Government orders to the effect that the promotions made to the posts of Assistant Superintendent (R & R) prior to 17th March, 1961 need not be disturbed. As the letter shows, the Commissioner had suggested in his memorandum No. 90C, dated 13th August, 1962 that promotions made to the posts of Assistant Superintendent, and Superintendent, Deputy Commissioner's Offices prior to 17th March, 1961, need not be disturbed and the government agreed to that suggestion but gave the advise that—

“the seniority of each candidate should be determined strictly in accordance with Rule 16 of the Punjab District Subordinate Service Rules, 1942, that is, from the date of substantive appointment in a class of service, whether it took place in the office of the Commissioner, or the Deputy Commissioner's office. The plea that the officials of the Commissioner's office, being in higher grade, should be given preference is not in accordance with the provisions contained in Rule 16 ibid. Government have accordingly determined the seniority of the candidates in the light of the above observations. A. copy of each seniority list is enclosed. Promotions made after the 17th March, 1961 may be revised on the basis of these lists.

The seniority of Shri Ajeeb Singh, Prem Chand, Pardumen Singh and Devi Saran could not be determined for want of full particulars. Their names may be brought, on the list for Assistant Superintendent according to the dates of their substantive appointment as clerks irrespective of the fact whether it took place in the Commissioner's or Deputy Commissioner's offices.”

13. The report about the compliance of these orders was asked for within a fortnight.

14. By order, dated 24th April, 1963, passed by the Commissioner, Ambala Division, the petitioner was reverted from the post of Assistant Superintendent (R & R) to his post in the Commissioner's office for the following reasons, as stated in para 22 of the return:—

(i) The list approved by the Government was to be given effect from 17th March, 1961.

(ii) The name of the petitioner was not on that list.

(iii) The petitioner was appointed as Assistant Superintendent (R & R) after 17th March, 1961.

(iv) In March, 1963, the Government orders were received to the effect that the petitioner should not continue as Assistant Superintendent (R & R) and should revert to his parent office (Commissioner's office).”

15. The petitioner felt aggrieved by the said order and filed Civil Writ No. 657 of 1963 in this Court. This petition was heard by Jindra Lal, J. and the judgment was reserved. On 22nd January, 1966, the Deputy Secretary to Government, Punjab, Revenue Department, sent memorandum No. 9205-D—E(I)-65/174 on the subject of enlistment of candidates for the post of Superintendent and Assistant Superintendent (R & R), Deputy Commissioners' Offices in Ambala Division. In this letter it is mentioned that the Government had re-considered the matter and decided that the seniority lists sent to the Commissioner in that department's communication, D.O No. 6814-DEI-62/33 dated 4th January, 1963, should be made effective from the date of the issue of the communication, viz., 4th January, 1963 instead of 17th March, 1961. With regard to petitioner Ajeeb Singh, it is stated in the letter as under:—

“It has further been decided that Shri Ajeeb Singh who had worked as Assistant Superintendent (R & R), Deputy Commissioner's Office from 12th May, 1961 to 17th May, 1963 and was reverted as a result of the decision conveyed,— vide marginal communication, should be restored to his original position as Assistant Superintendent (R & R) and posted as such. Necessary orders to this effect may please be issued immediately under intimation to Government.

Shri Ajeeb Singh may also be advised in a communication marked ‘without prejudice’ to withdraw his writ petition pending in the High Court without claiming any costs, etc”. On the basis of this letter orders were issued on 30th January, 1966, posting the petitioner, Ajeeb Singh, as Assistant Superintendent (R & R), Deputy Commissioner's Office, Karnal and a letter was issued to the petitioner on 31st January, 1966, marked “without prejudice” reading as under:—

“Orders about your posting as Assistant Superintendent (R & R), Deputy Commissioner's Office, Karnal, have been issued separately. You are, therefore, advised to withdraw the writ petition pending in the High Court without claiming any costs, etc.”

The Petitioner accordingly withdrew the writ petition and the following order was passed by Jindra Lal, J. on 7th February, 1966:—

“This petition was posted for hearing today. The learned counsel for the petitioner has put in an application in the form of an affidavit praying for the with drawal of the petition, as according to the affidavit he has got relief from the department. Dismissed as with drawn with no order as to costs.”

16. It is thus clear from the letter dated 22nd January 1966 that the Government had decided not to distrub all the appointments made prior to 4th January, 1963 and it was as a result of that decision that the petitioner was again posted as Assistant Suberintendent (R & R) in the Deputy Commissioner's Office, Karnal.

17. As a result of the re-organisation of the Stat of Punjab from 1st November, 1966, the petitioner continued to work as Assistant Superintendent (R & R) in the office of the Deputy Commissioner, Karnal. The Deputy Secretary, Revenue Department, Haryana, in his memorandum No. 8288-E(IV)-68/360, dated 29th January, 1968, asked the Commissioner, Ambala Division, to consider as cancelled the orders conveyed to him vide composite Punjab Government memorandum No. 9205-DE(I)-65/174, dated 22nd January, 1966 and to enforce the decision conveyed in the department's communication, D.O No. 6814-DE(I)-62/63 dated 4th January' 1963 and to enforce the list of Assistant Suprintendents (R & R) drawn up in the light thereof on the basis of Rule 16 of the Punjab District Subordinate Service Rules, 1942. It was further pointed out that in view of the tact the representation of Sarvshri Jagjit Singh and Harbhagwan were accepted their names may also be brought on the said list is accordance with Rule 16 ibid. After receipt of this communication, the Commissioner, Ambala Division, passed the impugned order on 9th March, 1968 by which he reverted the petitioner and some others including Bodh Raj petitioner in Civil writ No. 2127 of 1968, from the post of Assistant Superintendent (R & R). After enumerating the various letters reverted from the Government, the commissioner stated as under:—

“Para 9. Since Shri Ajeeb Singh was originally appointed as officiating Assistant Superintendent (R & R) after 17th March, 1961, his appointment was conditional and his name did not exist on the list approved by Government, he is, therefore, reverted from the post of Assistant Superintendent (R & R) to that of Assistant in my office.

Para 11 Shri Bodh Raj officiating Assistant Superintendent (R & R) Deputy Commissioner's Office, Ambala, was originally appointed as officiating Assistant Superintendent (R & R) in that office after 17th March, 1961, was reverted to the post of Assistant by Commissioner's order, dated 9th January, 1963 and re-appointed as officiating Assistant Superintendent (R & R), Deputy Commissioner's office, Ambala, by his (Commissioner's) order dated 19th February, 1960. His seniority position on the list approved by Government does not allow him to continue as Assistant Superintendent (R & R). He is, therefore, also reverted from the post of Assistant Superintendent (R & R) to that of Assistant in my office.

Para 12 With his memorandum No. 3192—D—63EP/1873, dated 15th June, 1963, the Deputy Secretary, Revenue, Communicated the criteria fixed by Government in consultation with the Punjab Public Service Commission for promotion to the post of Assistant Superintendent (R & R), Deputy Commissioners' offices. This criteria is to be followed from 15th June, 1963. None of these three officials, viz., Sarvshri Ajeeb Singh, Jagjit Singh and Bodh Raj fulfils this criteria.”

18. The petitioner has challenged the impugned order dated 9th March ??? him from the post of Assistant Superintendent (R & R) to that of Assistant in the Commissioner's office as illegal and manifestly without jurisdiction on various grounds.

19. The return has been filed by the Commissioner, Ambala Division. The petitioner filed a replication ??? and the Commissioner, Ambala Division, filed a rejoinder to the replication of the petitioner.

20. Bodh Raj, petitioner in Civil writ No. 2127 of 1961 was recruited direct as a senior clerk on a consolidated (fixed) pay of Rs. 60/- per mensem with effect from 11th August 1949 in the Commissioner's Office, Ambala and was reverted to the post of junior clerk in the grade of Rs. 50-3-80/4-100 with effect from 1st March 1950. He was promoted to the post of senior clerk in the grade of Rs. 60-4-80/5-120 from 23rd October, 1950 and reverted to the post of junior clerk from 12th November, 1950. He was then promoted to the post of senior clerk with effect from 1st April, 1952 and reverted to the post of junior clerk with effect from 1st August, 1953. He was again promoted as senior clerk with effect from 10th June, 1954 and was appointed substantive permanent junior clerk with effect from 9th March 1953. The distinction between junior and senior grade clerks was abolished by Government with effect from 1st January, 1955 and a unified grade of clerks, Rs. 60-4-80/5-120/5-175, was introduced from that date. The petitioner was confirmed as a clerk with effect from 1st March 1956 and was appointed substantive provisional Assistant with effect from 1st March, 1961. He was confirmed as Assistant with effect from 1st November, 1963 after having qualified in the test held by the Punjab Public Service Commission for the post of Assistant in the year 1959. He was appointed as an officiating Assistant Superintendent (R & R). Deputy Commissioner's Office Ambala, on 7th May, 1962, vice Shri T.N Ahluwalia and worked as such upto 6th February, 1963. Again from 20th February, 1966 to 12th March, 1966 he officiated as Assistant Superintendent (R & R), Deputy Commissioner's Office, vice Shri Daulat Ram, officiating Superintendent in the Education Department, Deputy Commissioner's Office, Karnal. From 1st April, 1968 to 24th May, 1968 he officiated as Assistant Superintendent (R & R), Deputy Commissioner's Office, Narnaul, in the leave arrangement of Shri Ujagar Singh. He was also reverted from the post of Assistant Superintendent (R & R) to that of his substantive post of Assistant by the impugned order dated 9th March, 1968 which has been set out above. He has also challenged the impugned order on various grounds and besides the Commissioner, Ambala Division, he has made the State of Haryana, the Financial Commissioner, Revenue, Haryana, Shri Pishori Lal, officiating Assistant Superintendent (R & R), Deputy Commissioner's Office, Gurgaon, Shri Shiv Nath Rai Kohli, officiating Assistant Superintendent (R & R). Deputy Commissioner's Office, Rohtak, and Shri Ugra Sain, officiating Assistant Superintendent (R & R). Deputy Commissioner's Office, Ambala, as respondents to the writ petition.

21. Returns to the petition have been filed by all the respondents, except Shri Pishori Lal respondent 4. The petitioner filed replications to those written statements and the rejoinders were filed to the replications by the said respondents.

22. The first objection raised on behalf of the respondents is that all officials, who would be affected by the decision in these writ petitions, have not been made parties and, therefore, in the absence of necessary parties, the petitions cannot be heard and should be dismissed. The reply on behalf of Ajeeb Singh petitioner, by his learned counsel, is that he wants the impugned order to be quashed and if it is quashed, the respondents will give effect to the same. He cannot be expected to continue watching as to who are appointed after that order and who is going to be affected thereby. The appointment and promotions are made quite frequently and it is not possible to make all of them parties to the writ petition. The reply on behalf of Bodh Raj petitioner, by his learned counsel, is that the three persons who were likely to be affected by the decision of his writ petition have already been made parties and he does not know of any other person who is going to be affected thereby. After giving my careful consideration to this objection, I am of the opinion that the writ petitions cannot be dismissed on that ground. In casa the writ petitions are accepted, it will be for the State of Haryana and the Commissioner, Ambala Division, to give effect to the same. All that can be said is that the rights of any official, who is not a party to these petitions, shall not be deemed to have been affected by the decision that is going to be made in these writ petitions and that if in order to give effect to the order made in these writ petitions, any person is going to be affected, the Government or the Commissioner shall give him an opportunity of hearing before making the order to his detriment.

23. The next objection raised on behalf of the respondents is that there is a dispute on facts as to the instructions issued by the Government from time to time and the binding nature of those instructions. I do not find that there is any such dispute. The facts are almost all admitted and it is possible to decide these writ petitions on the facts which have been admitted.

24. The next objection taken by the learned counsel for the respondents is that the petitioners were holding the posts of Assistant Superintendent (R & R) on a temporary basis and they have been reverted to their substantive ranks, not by way of punishment but on account of administrative exigencies and the order of reversion do not cast any stigma on their work, conduct, character or integrity. The order of reversion is an ad-ministrative order and they were, therefore, not entitled to any notice before the order was mule nor have they any right to complain about that order. They have no right to the temporary posts held by them and, therefore, have no cause of action for filing these writ petitions. Stated in another way, the argument is that the petitioners have no legal right which has been infringed and, therefore, they have no right to ask this Court to issue any writ of mandamus. The learned counsel have relied upon various judgments which are noted below:—

1. 1State of State Of Bombay (Now Maharashtra) v. F.A Abraham , A.I.R 1962 S.C 794, in which their Lordship observed as under:—

“A person officiating in a post has no right to hold it for all times. He may have been given the officiating post because the permanent incumbent was not available, having gone on leave or being away for some other reason When the permanent incumbent comes back, the person officiating is naturally reverted to his original post. This is no reduction in rank for it was the very term on which he had been given the officiating post. Again, sometimes, a person is given an officiating post to test his suitability to be made permanent in it later. Here again, it is an implied term of the officiating appointment that if he is found unsuitable, be would have to go back. If, therefore, the appropriate authorities find him unsuitable for the higher rank and then revert him back to his original lower rank, the action taken is in accordance with the terms on which the officiating post had been given. It is in no way a punishment and is not, therefore, a reduction in rank……….

The reversion has not in any way affected the respondent so far as his condition and prospect of service are concerned. He, of course, lost the benefit of the appointment to the higher rank but that by itself cannot indicate that the reversion was by way of punishment because he had no right to continue in the higher post or to the benefits arising from it. He had been reverted in exercise of a right which the Government had under the terms of the officiating employment.”

In that case, F.A Abraham was holding the post of Inspector in the Central Provinces and Berar Police Service on 8th June, 1948 ??? appointed to officiate as Deputy Superintendent of Police with effect from 9th June, 1948 on 27th January, 1949, his services were lent to the Hyderabad Government in connection with the police action then being taken there. On 5th February, 1949, he was sent to the Central Provinces and Berar and on 19th February, 1949, the Inspector-General of Police, Central Provinces and Berar, passed an order reverting him to the rank of. Inspector. This order was challenged by Shri Abraham in a suit which was decreed by the Court of Additional District Judge, Nagpur, and that decree was confirmed by the High Court. The decree declared that the order reverting Abraham from the rank of officiating Deputy Superintendent of Police to the Inspector of Police was illegal and void and granted certain consequential reliefs. Abraham had asked the Government to supply him the reason for his reversion which the Government refused to communicate. It appears that some enquiry was made into certain allegations of corruption made against him while he was acting in the service of Hyderabad Government as a result of which the Inspector-General of Police addressed a letter to the Chief Secretary to Government of Madhya Pradesh on 19th August, 1950, stating that the respondent's previous record was not satisfactory, and that he had been promoted to officiate as Deputy Superintendent of Police as the Government was in heed of officers and that he had been given a chance in the expectation that he would turn a new leaf but the complaint made in the confidential memorandum was a clear proof they the officer was habitually dishonest and did not deserve promotion. It was held by their Lordships of the Supreme Court that the enquiry had been made after the order of reversion had been passed inference could be drawn from that enquiry as it was not the occasion for the eversion of the respondent. The Government had the right to consider the suitability of Abraham to hold the position to which he had been appointed to officiate and it was entitled for that purpose, to make enquiries about his suitability. On facts the case is clearly distinguishable as in the present case it has not been found by the Commissioner that the petitioners were unsuitable but that they did, not possess the criteria for appointment as Assistant Superintendent (R & R), which had been fixed by the Punjab Public Service Commission in May, 1963 although the petitioners had been appointed originally in 1961 and 1962 as Assistant Superintended (R & R).

2. 2Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda College, Bihar Sharif, A.I.R 1962 S.C 1210, in which their Lordships held as under:—

“In order that mandamus may issue to compel the respondents to do something, it must, be shown that the statutes imposed a legal duty and the appellant has a legal right under the statutes to enforce its preformance. ………………………………. According to the statutes all appointments of teachers and staff have to be made by the governing body and no person can be appointed, removed or demoted except in accordance with rules but the appellant has not shown that he has any right entitling him to get an order for appointment or reinstatement.”

3. 3Sukhbans Singh v. The State of Punjab, A.I.R 1962 S.C 1711, in which the following propositions were laid down:—

1. “A probationer cannot, after the expiry of prabationary period, automatically acquire the status of a permanent member of a service, unless of course the rules under which he is appointed expressly provide for such a result.

2. Article 311 makes no distinction between permanent and temporary posts and extends its protection equally to all Government servants holding permanent or temporary posts or officiating in any of them. But the protection of Article 311 can be available only where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. One of the tests for determining whether the termination of service was by way of punishment or otherwise is whether under the Service Rules, but for such termination, the servant has the right to hold the post.

3. A probationer officiating in a higher post who continues to be such without being reverted after the expiry of the period of probation has no legal right to the higher post in which he is officiating but merely becomes eligible for being absorbed in the higher post as a permanent member. He still continues to be a probationer and can be reverted to his original post under the service rules even without assigning any reasons, it his work is found to be unsatisfactory. The provisions of Article 311(2) do not apply to such a situation. But if he is reverted to his original post by way of punishment for misconduct, the provisions of Article 311(2) become applicable and the re version made without complying with the provisions of Article 311(2) would be illegal.”

4. 4The Divisional Personel Officer, Southern Railway, Mysore v. S. Ragkavendrachar, A.I.R 1966 S.C 1929, which reiterated what was held in State of State Of Bombay (Now Maharashtra) v. F.A Abraham (supra) and 5High Court, Calcutta v. Amal Kumar Roy, A.I.R 1962 S.C 1704, and it was held that “losing some places in the seniority list is not tantamount to reduction in rank.”

5. 6S. Avtar Singh Uppal v. The Inspector-General of Police, Chandigarh, 1966 Current Law Journal (Pb.) 318, in which Narula, J. laid down the following propositions:—

“1. If an officiating government servant has no right to hold a higher post and is reverted to his substantive rank otherwise than by way of punishment, he has no cause of action.

2. If the reversion is by way of punishment and the same is effected without affording the official concerned the requisite opportunity under Article 311(2) of the Constitution, the older of reversion will have to be struck down.

3. The order of reversion would be deemed to be by way of punishment if it visits the official concerned with evil consequences ensuing from the order of reversion, the evil consequences in the matter of forfeiture of pay or loss of seniority being considered only in the context of the official's substantive rank and not with reference to his officiating rank from which he is reverted.

4. If the official concerned not only suffers loss of seniority on account of the order of reversion but also suffers on account of the order of reversion the postponement of his future chances of promotion to the senior scale or the higher post, the order is by way of penalty.

5. That in determining whether a particular order of reversion amounts to the reduction of the official in rank within the meaning of Article 311 of the Constitution or not, it is not only the form or the wording of the particular order which is to be treated as conclusive but it is the substance of the matter which has to be determined after consideration of the totality of the circumstances. The real character of the order has to be determined by reference to the material facts that existed immediately prior to or at the time of the impugned order.

6. If the real intention is found to be to penalise or punish the official, then notwithstanding the form of the order the reversion would be held to amount to reduction in rank.

7. That in considering the circumstances of each case the motive of the relevant authorities in reverting the official concerned is wholly irrelevant but the mind or the intention to inflict punishment or to revert in ordinary course would certainly be relevant.

8. The mere fact that it is found that it was the official's unsatisfactory work, which resulted in his reversion, will not vitiate the order as there is no sense in trying a person in a higher rank in officiating capacity if he cannot be reverted in spite of his work in the higher rank being unsatisfactory or in spite of his being found unsuitable to hold the higher post without taking disciplinary proceedings against him. To such a case Article 311(2) of the Constitution will not apply.”

6. 7The The State Of Punjab… v. Ram Singh Brar…., R.S.A 141 of 1965, decided by D.K Mahiajan and P.C Jain, JJ. on 13th September 1968, in which P.C Jain, J. speaking for the Court observed as under:—

“After considering the respective arguments of the learned counsel for the parties and also the authorities cited before us, the true legal position that emerges out is that the order of reversion per se does not amount to punishment and it can be challanged only if it is by way of punishment and has been effected without affording the officiating officer the opportunity required under Article 311(2) of the Constitution………………. In this view of the matter it cannot be held that every order of reversion would amount to an order of punishment. The authority which has a right to promote a person to an officiating post has also a right to revert him back to the substantive post unless of course that authority was reverting the officiating hand by way of punishment. Whether a particular order of reversion is by way of punishment or not will depend on the facts and circumstances of each case.”

7. 8State of Punjab v. Appar Apar Singh, A.I.R 1967 Punjab 139, in which a Division Bench of this Court held as under:—

“A person officiating in higher rank has no right to that post. He can be reverted from it without assigning any reason. But if he is reverted from it by way of punishment, the reversion will be bad because in that case the provisions of Article 311(2) would be attracted. But if the reversion is not by way of punishment but because the person reverted is not found suitable to hold the post, per se it will not amount to punishment though a stigma does attach by reason of the reversion that he was found unfit to hold a higher post. Each case has to be considered by looking into the totality of circumstances leading to reversion in order to determine whether the order of reversion has been passed by way of punishment or otherwise.”

It was also held as under:—

“In the case of reversion of a person from a higher rank to a lower rank, the reasons for reversion are known to the department and are recorded in the official file. Therefore, the chances of promotion of a person reverted from a higher rank to a lower rank, excepting in two cases already noticed, namely, the permanent incumbent of that post having come back from leave or the post having been abolished, do stand in the way of promotion to the higher rank.”

It was further said on the facts of that case that:—

“I am unable to hold that the impugned order of reversion was punishment. I have no doubt that if the respondent shows better promise, the authorities will, whenever a chance arises, promote him to the higher rank. There is no order on the file that under no circumstances the respondent will be promoted to the higher rank.”

8. 9Mazhar Hasnain v. State of U.P, A.I.R 1961 Allahabad 316, in which a learned Single Judge of that Court held as under:—

“The sole question that arises is: Was the petitioner entitled to the rank? If he had been sent and another person was senior who had not been appointed, the petitioner was not entitled to the rank and in fact he was appointed by mistake, and if that mistake has been corrected, it cannot be said that any right of the petitioner has been taken away from him. He has been placed at the place where he should have been, if there had been a proper interpretation as has been made by the State Government.”

The learned Judge continued to observe:—

“If this contention of the learned counsel is accepted that once a person is transferred on promotion to another place, thereafter he cannot be reverted back on representation made by some other person, then, in that event, the right of representation will lose all its force. An appointment, where an appeal or revision is possible, is always subject to the result of such appeal or revision.”

These observations were approved and applied to the facts of another case by Satish Chandra, J., in 10 Prayag Dass Seth v. Secretary to Government U.P, A.I.R 1968 Allahabad 279.

9. 11K. Ananthan Pillai v. The State of Kerala, A.I.R 1968 Kerala 234 (Full Bench), in which it was held as under:—

“When a person is overnight, as it were, pushed down to a lower post from a higher post he has been holding for over three years and suffers as a consequence a loss of emoluments (in this case, amounting to as much as Rs. 375 per mensum) hardship is necessarily involved even if it be that he had been overnight, and underservedly, pushed upto the higher post. But there is here no question of a reduction in rank attracting Article 311 of the Constitution since the reduction was not by way of penalty and did not cast the least aspersion on the petitioner. The reduction was only a consequence of an order, whether right or wrong, fixing the petitioner's proper place in the service in accordance with the service rules. It might perhaps be desirable, as a matter of policy, that, even a purely administrative authority should give a person against whom an order entailing serious consequences, such as a termination of employment or reversion to a lower post, is being made, an opportunity to represent his case if the order depends on an assessment of facts that might be disputed or on rules and orders that might be lost sight of or misinterpreted. But, we do not think that this is required by law unless the order involves some stigma on the person concerned or an adjudication of disputed facts the determination of which, if wrongly made, would have the effect of violating his service rules and therefore of infringing his civil rights, it is only in such cases that an administrative authority-and it is not disputed that in making the order. Exhibit p-12., Government acted purely as an administrative authority is under a duty to act judicially so as to attract the rule of natural justice embodied in the maxim audi alteram partem.”

Reliance has also been placed on my judgment in 12Gurbakhsh Singh v. State of Punjab (Civil writ No. 1430 of 1967, decided on 20th February, 1969), in which I held the transfer of the Head Assistant of the Civil Defence/Home Guards Department to his parent department valid and in which I had held that the reversion to the parent department did not attract the provisions of Article 311 of the Constitution, as by that order Gurbakhsh Singh had neither been reduced from a higher rank to a lower rank nor did it entail any penal consequences by way of punishment. The reversion to the parent department could be made under the service rules applicable to him of which he was aware when he got the appointment in the Civil Defence/Home Guards Department in 1958. In that case Gurbakhsh Singh had been found to be unsuitable for the post in the Civil Defence/Home Guards Department and he was transferred to his parent department by orders of the Government. The facts of that case are not, therefore, at par with the facts of instance cases. My judgment in R.S.A No. 306 of 1965, 13Joginder Singh v. State of Punjab, decided on 12th November, 1968, is also not applicable for similar reasons. Joginder Singh had been transferred to the Beas Project as Executive Engineer while he was holding the substantive post of Assistant Engineer in Punjab P.W.D Public Health Branch. He was found unsuitable and was reverted to his parent department as Assistant Engineer. He filed a suit for a declaration to the effect that the order reverting him to the parent department and reducing him to the post and rank of Assistant Engineer from the post and rank of Executive Engineer, was illegal, unconstitutional etc. Relying on the judgment of their Lordships of the Supreme Court in the 14State of Punjab v. Sukh Raj Bahadur, 1968 S.L.R 701, I observed as under:—

“On his return to the parent department, he was appointed to his substantive rank. His grievance is that his junior Shri M.L Prabhakar was then working as officiating Executive Engineer and he should have been given that post on reversion to his parent department. It may be remembered that in his officiating rank as Executive Engineer, he was found to be unsuitable primarily on the ground that he had no hold on his subordinates. His officiating oppointment for the purpose of deputation was subject to the approval of Public Service Commission and when his case was referred to the Public Service Cemmission for approval, the Commission refused to give its approval. It cannot, therefore, be said that his reversion to the substantive rank of an Assistant Engineer amounted to reduction in rank within the meaning of Article 311 of the Constitution.

It is no doubt true that the order has led to some penal consequences in the sense that the appellant has not been promoted as Excutive Engineer thereafter, but promotion is not a matter of right of any public servant. The authorities have to judge the suitability of a particular officer for a higher rank to which he is to be promoted. The only right, a public servant has, is to be considered for the higher post. The impugned order does not debar him from promotion, nor does it cast any aspersion on his character, and integrity and therefore, cannot be said to be bad in law.”

25. Those observations do not apply to the facts of the present cases as the petitioners have not been reverted because they were not found suitable for the jobs or their work or conduct was not satisfactory.

26. In reply, the learned counsel for the petitioners have urged that the Commissioner, Ambala Division, has given reasons for their reversion and the reasons are not that they have been found unfit for the posts of Assistant Superintendent (R & R). The rules have been misinterpreted because Rule 16 of the Punjab District Subordinate Service Rules does not apply at the stage of recruitment of Assistant Suprintendent (R & R) but only after any candidate is selected for that post when the question of fixing his seniority arises. The appointing authority is the Commissioner who has to act in his individual judgment while making the appointment and cannot be guided by the Financial Commissioner or the Government. The Petitioners, when appointed as officiating Assistant Superintendent (R & R), were qualified to be so appointed in view of Rule 8 of the said rules. The rule does not prescribe any qualification for a member of the Commissioner's Subordinate Service for being eligible to the post of Assistant Superintendent (R & R). The qualification prescribed by the Public Service Commission in May, 1963 could not be made applicable retrospectively. The eligibility of the petitioners for the post had to be considered when they were appointed and it is not contested that they were so qualified on the date of their respective first appointments. Their Civil rights, which they had acquired, have been violated and the principles of natural justice require that they should have been given a notice of the proposed order so that they could point out that the interpretation now being put on the various Government instructions and the rules was not the correct interpretation and the decision of the Commissioner, when they were appointed, was correct.

27. After hearing the learned counsel on both sides and after taking into consideration the various principles of law enumerated in the above cited judgments, I am of the opinion that the impugned order is not an order of reversion simpliciter and entails penal consequences although not by way of punishment. It, however, debars the petitioners for ever from the chance of appointment as Assistant Superintendent (R & R) because it has been held that they are not eligible for these posts. This decision works to their detertment in seeking future promotion to these posts. Moreover, Rule 13 of the Punjab District Subordinate Service Rules, 1942, provides for six months' period of probation for a Government servant who has been appointed by selection or transfer. The period of probation no doubt can be extended under Rule 15 but if his work and conduct are found to be satisfactory, in the opinion of the appointing authority, he is entitled to be confirmed. The impugned order does not state that the petitioners were not found suitable or that their work and conduct was not satisfactory which leads me to believe that but for the instructions of the Government conveyed by memorandum No. 8288-E(IV)-68-360, dated 29th January, 1968, the petitioners might have been confirmed in their posts. In the instant cases, therefore, the violation of Article 311(2) of the Constitution has taken place audit was incumbent on respondents to give notice to the petitioners before passing the impugned order to their detriment.

28. I am also inclined to take the view that the decision of the Government, conveyed by the Deputy Secretary, Revenue, Punjab, to the Commissioner, Ambala Division, by memoradum No. 9205-DE(I)-65/174, dated 22nd January, 1966, gave Ajeeb Singh petitioner a right to the post from which he had been reverted by order dated 24th April, 1963, against which he filed a writ petition in this Court. When the Government conceded his right and directed him to withdraw the writ petition without claiming costs, it can be safely assumed that the Government considered all aspects of the matter and came to a firm decision. It was not open to the respondents to say that decision was wrong and to treat it as cancelled after the lapse of two years. In view of that decision, the persons, who had been promoted or appointed as Assistant Superintendent (R & R) before 4th January, 1963 became immune from the reopening of the decision regarding their appointment. Thereafter they could be reverted only if their work and conduct was not found satisfactory about which nothing has been said in the impugned order. Their Lordships of the Privy Council, in 15 R.T Kangachari v. Secretary of State, A.I.R 1937 P.C 27, held as under:—

“In these circumstances the case becomes a case in which after Government Officials duly competent and duly authorised in that behalf have arrived honestly at one decision their successors in office, after the decision has been acted upon and is in effective operation, purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision.”

29. These observations aptly apply to the facts of the instant cases. The matter was taken to this Court in a writ petition by Ajeeb Singh petitioner and it must have been examined carefully by the Government before taking the decision which was conveyed to the Commissioner, Ambala Division, on 22nd January, 1966. On that decision having been conveyed to Ajeeb Singh petitioner and he having withdrawn the writ petition acting on that representation, it was not open to the respondents to treat that decision as cancelled and to restore the decision contained in letter dated 4th January, 1963. Asimilar principle was enunciated by their Lordships of the Supreme Court in 16The Union of India v. Indo Afghan Agencies etc., A.I.R 1968 S.C 718. In that case the Textile Commissioner had published a scheme called the Export Promotion Scheme providing incentives to exporters of woollen goods, by which Scheme the exporters were invited to get themselves registered with the Textile Commissioner for exporting woollen goods to Afghanistan on the representation that they would be entitled to import raw materials of the total amount equal to 100 percent of the f.o.b value of the exports. Indo-Afghan Agencies exported to Afghanistan in September, 1963, woollen goods of the f.o.b value of Rs. 5,03,471.73. The Deputy Director in the office of the Textile Commissioner, Bombay, issued to the respondents an Import Entitlement Certificate for Rs. 1,99,459-00 only. Representations made by the firm to the Deputy Director and the Union Government that it should be granted Import Entitlement Certificate for the full f.o.b value of the goods exported, failed to produce any response. The petitioner filed a petition under Article 226 of the Constitution in this Court and it was held in that petition that the petitioner was entitled to import materials of the value equal to 100 per cent of the f.o.b value, unless it was found on enquiry duly made under Clause 10 of the Scheme that the firm had no “over-invoicing” the goods disentitled itself to the import licences of the full value; that no such enquiry was made by the Textile Commissioner and that officer merely proceeded upon his “subjective satisfaction” that the respondents have “over-invoiced” the goods exported and that the Union Government acted on irrelevant grounds. The Union of India, the Textile Commissioner and the Joint Chief Controller of Imports and Exports, appealed to the Supreme Court and their Lordships held that:—

“even though the case did not fall within the terms of Section 115 of the Evidence Act, it was still open to a party who had acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by it, even though the promise was not recorded in the form of a formal contract as required by Article 229 of the Constitution.”

30. It has not been stated that any persons aggrieved by the order, dated 22nd January, 1966 filed an appeal or representation. In fact the Government did not come in because the appointing authority is the Commissioner and if any representation had to be made, it could only be made to the Commissioner. There is no allegation that any such representation was made to the Commissioner. The direction issued by the Government on 29th January, 1968 was entirely without jurisdiction and the Commissioner erred in law in blindly following it and not exercising his own judgment in the matter. He took pains to write a reasoned order but without considering the arguments which could possibly be advanced by the petitioners and that could be done only if they had been given notice of the proposed order. Once it had been decided that promotions or appointments made before 4th January, 1963 would not be reopened, and that decision was given effect to in the case of both the petitioners, the Government had no right to recall that decision without affording a reasonable opportunity of hearing to the petitioners especially because the impugned order based on the direction of the Government has adversely affected their interests, as has been held above.

31. The next argument advanced by the learned counsel for the petitioners is that Rule 8 of the Punjab District Subordinate Service Rules, made every member of the Commissioner's Subordinate Service eligible for appointment as Assistant Superintendent (R & R). It was not open to the Government in May or June, 1963 to the prescribe the criteria for the post of Assistant Superintendent (R & R) as was done by it vide memorandum No. 3192-DEI-63/1877, dated 15th June, 1963, read with the memorandum No. 6030-E (IV)-67/3880, dated 10th November, 1967. According to this criteria only those Assistants of Commissioner's office could be considered who might have been imported from Deputy Commissioner's office and who might have already put in five years' experience as an Assistant of the Deputy Commissioner's office on the revenue and judicial sides. In any case, this criteria could not be enforced before it was laid down. The appointments of both the petitioners as Assistant Superintendent (R & R) had been made before this criteria was laid down. Reliance has been placed by the learned counsel on a Division Bench judgment of this Court (S.B Capoor and Shamsher Bahadur, JJ.) in the 17State of The State Of Haryana… v. Shamsher Jang Shukla…., 1968 S.L.R 162. The matter under consideration in that case was that after the merger of Punjab and Pepsu in 1956, the Chief Secretary to the Punjab Government issued instructions to hold a qualifying examination for promotion from the post of a clerk to that of an Assistant. This condition of service was not there when the merger took place. It was argued that the prescribing of the qualifying test violated the provisions of section 115(7) of the States Re-organisation Act it was submitted on behalf of the Government in that case that “if the service rules are silent on a particular point the gap or lecuna could be filled by administrative instructions” and that “selection being the test of promotion and no means of selection having been prescribed in the rules. It was within the competence of the Executive Government to say that the employees' promotion would be conditional on passing a test.” Reliance was placed for this submission on the decision of their Lordships of the Supreme Court in 18Sant Ram Sharma v. The State of Rajasthan, A.I.R 1967 S.C 1910. The learned Judges held:—

“It is a case of first promotion though in the clerical grade from the position of a clerk to that of an Assistant and unless the rules so specifically provide, the test envisaged in the administrative instructions could not be regarded as an essentail pre-requisite for such promotion.

32. And that:—

“the conditions imposed for the promotion are based on administrative instructions which do not derive sustenance from any statutory rule.”

33. The learned Judges further held that —

“the test has introduced a condition of service after 1st of November, 1956, and this condition is to the manifest detriment of the Pepsu employees for certain and possibly also of the personal belonging to Punjab. Some of the appeals pending in this Court on this point relate to Punjab employees as well. In this situation, it seems to us that no enforceable rule can be said to have been framed within the meaning of proviso to sub-section (7) of section 115 of the Act to justify the order of reversion.”

34. Similar view was taken by another Division Bench of this Court (Mehar Singh, C.J and R.S Narula, J.) in 19Sat Pal Sharma v. State of Punjab, I.L.R 1969 (1) Punjab and Haryana. The learned counsel for the respondents have argued that Rule 8 of the Punjab District Subordinate Service Rules, 1942, only prescribes one of the sources of recruitment as the members belonging to the Commissioner's Subordinate Service but it does not state who from amongst the members of that service will be eligible for consideration. The criteria now laid down does not relate to the conditions of service but to the qualification for recruitment and is, therefore, not hit by the decisions of the two Division Benches of this Court, referred to above. In my opinion, there is force in the argument of the learned counsel for the respondents. The criteria prescribed does not affect any condition of service because it is not one of the conditions of service of the members of the Commissioner's Subordinate Service that they shall be promoted as members of the Punjab District Subordinate Service. They have just a right to be considered for those posts. The appointing authority can at any time prescribe the qualifications for recruitment. The prescribing of the criteria, therefore, comes within the dictum of their Lordships of Supreme Court in Sant Ram Sharma's Case, and could be prescribed and, therefore no fault can be found with it but the criteria prescribed on 15th June, 1963 and 10th November, 1967 cannot be made applicable retrospectively especially when it had been decided that the appointments made before 4th January, 1963 were not to be touched. In my opinion, the Commissioner was not correct in holding that the petitioners were not eligible because they did not possess the prescribed criteria as their qualification for eligiblity had to be seen when they were appointed in 1961 and 1962. At that time they were admittedly eligible for the posts as no such criteria had yet been prescribed. The respondents cannot now hold them ineligible for those posts on the basis of the criteria prescribed in 1963 and 1967. The instruction contained in the letters dated 15th June, 1963 and 10 November, 1967 cannot, therefore, be given retrospective effect. It cannot be said that when they were re-appointed in 1966 as a result of the new decision conveyed by letter dated 22nd January 1966 it had to be considered whether they possessed the prescribed criteria then because by that decision it had been assumed that the petitioners had been wrongly reverted in 1963 on the footing that the appointments made prior to 17th March, 1961 were not to be reopened but subsequent appointments could be reopened. Once the Government came to the decision that the appointments made prior to 4th January, 1963, were not to be reopened, the petitioners could not have been deprived of their posts on the ground that they did not possess the prescribed criteria of qualification.

35. The learned counsel for the petitioners have next submitted that the appointing authority being the Commissioner, the Government had no right to issue any instructions in the matter to the Commissioner. Reliance has been placed upon a Division Bench judgment of this Court, (Bhandari, C.J and Dulat, J.) in Punjab State v. Mehr Chand, A.I.R 1969 Punjab 222, in which it was held as under:—

“It is contended on behalf of the petitioner that the order of the Assistant Custodian is invalid because he failed to exercise his own individual judgment and chose instead to follow the general instructions issued by the Custodian. There is considerable force in this contention, for it is a well-known proposition of law that when the legislature confers a discretion on an executive officer it must be exercised personally by the officer in whom it is vested or by the officer to whom it is delegated in accordance with the provisions of law.

This is as it ought to be, for when the only right of the individual which the law gives is that which a designated officer deems best and when the honest decision of that officer is the measure of the right, it is only reasonable that the said officer should bring his own independent mind to bear on the problem placed before him and exercise his own judgment and discretion unfettered by executive or other instructions issued by superior authorities.

36. The learned counsel has also brought to my notice a Division Bench Judgment of this Court in 20Chanan Singh v. The State of Punjab, 1963 P.L.R 732, in which it was held that—

“it was the Chief Engineer alone who must apply his mind to the facts of a particular case and make the necessary order with regard to the alignment and that the Minister was not competent under the Northern India Canal and Drainage Act to pass any order.”

37. In that case, the Minister, Irrigation and Power, had approved of the alignment and there was a note on the record from which it was obvions that the impugned alignment was really the result of instructions from the Irrigation and Power Minister and not of any sound technical advice as was represented in the written statement. The learned Judges accepted the petition and set aside the order.

38. Reliance has next been placed on my judgment in 21Bhim Chand v. The Deputy Commissioner, District Rohtak, 1968 S.L.R 798, in which held as under:—

“It is thus clear that under the rules, the decision to retain a Government employee in service or to retire him by three months' notice after he attains the age of 55 years, is with the appointing authority. If that decision is not arrived at by the appointing authority himself but is made on the dictation of some other authority, the order is bad in law.”

39. Gurdev Singh, J. had also taken a similar view in 22Roshan Lal Gogia v. Financial Commissioner Civil Writ No. 747 of 1968, decided on 12th July, 1968 with which I expressed my respectful agreement.

40. The learned counsel has also relied upon a judgment of their Lordships of the Supreme Court in the 23Sate of Punjab v. Hari Kiskan Sharma, 1966 P.L.R 510, in which it was held as under:—

“The scheme of the Act clearly indicates that there are two authorities which are expected to function under the Act—the licensing authority, as well as the Government. Section 8 is an illustration in point. It empowers the State Government or the licensing authority to suspend, cancel or revoke a licence on the grounds specified by it; and that shows that if a licence in granted by the licensing authority, it has the power to suspend, cancel or revoke such licence just as Government has a similar power to take action in respect of the licence already granted. We are, therefore, satisfied that the High Court was right in coming to the conclusion that appellant No. 1 had no authority or power to require all applications for licences made under the provisions of the Act to be forwarded to it, and to deal with them itself in the first instance. Section 5 clearly requires that such applications must be dealt with by the licensing authorities in their respective areas in the first instance, and if they are granted, they may be revised by Government under section 5(2); and if they are rejected parties aggrieved by the said orders of rejection may prefer appeals under section 5(3) of the Act. The basic fact in the scheme of the Act is that it is the licensing authority which is solely given the power to deal with such application in the first instance, and this basic position cannot be changed by Government by issuing any executive orders, or by making rules under section 9 of the Act.”

41. To the same effect is another judgment of their Lordships of the Supreme Court in 24Commissioner of Police, Bombay v. Gordhandas Bhanji, A.I.R 1952 S.C 16.

42. In the return filed by the Commissioner, Ambala Division, emphasis has been laid on the fact that an unjust protection had been given to the petitioners by the order of the Government dated 22nd January, 1966 and by the issuance of the letter dated 29th January, 1966 that illegal protection had been withdrawn and justice had been done to those to whom it had been denied earlier. This everment, in my opinion, should have led the respondents to conclude that the petitioners who had enjoyed the benefits of the posts of Assistant Superintendent (R & R) should be heard before they are deprived of that benefit. It was held by Narula, J. in 25M.L Chopra v. Union of India, 1967 S.L.R 588, as under:—

“Suffice to say that once a certain protection or benefit had been afforded to the petitioners they were certainly entitled to be heard and entitled to be given sufficient and adequate opportunity to show cause against their being deprived of the same benefit particularly with retrospective effect. This is necessary in order to conform to the principles of natural justice, which are enshrined in the guarantee of rule of law contained in Article 14 of the Constitution.”

43. A Division Bench of the Patna High Court held in 26Ram Kirpalu Mishra v. University of Bihar, A.I.R 1964 Patna 41, (as per head note 1):—

“Held that although section 4 of Bihar Act XIII of 1962 did not expressly say that notice must be, given to the teacher who is to be affected prejudicially by the order of the Chancellor, it is well established as a matter of law that in such a case a notice is necessary. As a matter of necessary legal implication the Chancellor was bound to act in accordance with natural justice before exercise of the statutory power conferred by section 4 of the Statute. Therefore, even on the assumption that Section 4 of the Bihar Act 13 of 1962 is intra vires (point not decided) the order of the Chancellor dated the 20th June, 1962 without notice to the petitioner was ultra vires and illegal as it viol a the principle of natural justice and was liable to be quashed by a writ of certiorari under Article 226.”

44. Whether a notice should be given in a particular case where the order is administrative, it will depend on the particular facts of that case.

45. If an administrative order in due course, and in the interest of administration is passed, possibly there may no question of giving the notice to the person affected thereby but where civil consequences, are involved, the notice must be given, as has been held by their Lordships of the Supreme Court in 27State of Orissa v. Dr. (Miss) Binapani, A.I.R 1967 S.C 1269. In that case their Lordships observed:—

“It is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving a opportunity to the first respondent of being heard and meeting or explaining the evidence.”

46. In the instance cases the notice should have been given to the petitioners because they would have endeavoured to satisfy the Commissioner that rule 16 of the Punjab District Service rules, which had been invoked by the Government and insistence was made that the appointment should be made in accordance therewith was not applicable to the case of recruitment but would come into play only after the petitioners had been selected for the posts of Assistant Superintentent (R & R) and their seniority had to be fixed in the Punjab District Subordinate Services. It is not stated anywhere that the seniority of the petitioners in the Commissioner's office had not been rightly fixed. The argument appears to be that there were certain other persons in the offices of the Deputy Commissioners who were qualified for appointment and whose cases had not been considered for that purpose Rule 16 cannot be invoked. The insistence of Rule 16 was, therefore, extraneous and it vitiated the decision of the Commissioner.

47. For the reasons given above, both the petitions are accepted and the impugned order dated 9th March, 1938 reverting the petitioners from the posts of Assistant Superintendents (R & R) is hereby quashed. Since the petitioners were temporary Assistant Superintendents (R & R) and had not yet been confirmed, it will be open to the Commissioner to consider whether they should be confirmed in those posts under Rules 13 to 15 of the Punjab District Subordinate Service Rules, 1942. As the points of law involved in the cases were not free from difficulty, I leave the parties to bear their own costs.

Civil writ No. 1001 of 1968

Ajeeb Singh Bakshi v. State Of Haryana Through The Secretary Revenue

Court Opinion — Ajeeb Singh Bakhshi v. State of Haryana; Bodh Raj Mehta v. State of Haryana

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondents' Arguments (Commissioner / State)

Petitioners' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Implications and Direct Consequences

Ajeeb Singh Bakshi v. State Of Haryana Through The Secretary Revenue

Comments