Jitendrarai K. Oza vs Saurashtra State

Chhatpar, J.—This is a petition under Article 226, Constitution of India for a writ of certiorari to revise an order �of Government

terminating the services of the applicant.

The applicant was a servant in the Agency Police Department in 1922 and was appointed as a Chief Constable on 1-1-36. During the continuance

of the Attachment Scheme his services -were transferred to the Baroda State from 1943 to 1947; in 1947 he was Sar Fouzdar and Assistant

Police Nayab Suba in the Baroda State service. Thereafter the Attachment; Scheme having terminated in August 1947, he was transferred to the

Western Indian. Regional service, wherein he continued till the integration and formation of State of Saurashtra.

He alleges that on 1-3-48 he was regularly absorbed in the service of the Saurashtra State in the Police Department, On 4-2-49, the applicant was

served with a copy of an order stating:

Government is pleased to direct that Mr. J.K. Oza, a Chief Constable transferred from the, service of the Police Department of the Region will

retire with immediate effect.

2.Mr. Oza will be entitled to compensation and or pension as if he is a servant of this Government.

Sd. J.L. Hathi,

Add. Secy. H. and S. Deptt. U.S.S.

Thereafter the applicant made some applications contending, that his removal from service was against the Bombay Civil Service Regulations, as

he was not given any opportunity of being heard. He also applied for relief to the Regional Commissioner, but was told that the Saurashtra

Government had; decided not to continue him in service. Ultimately the Regional Commissioner passed the following order dated 17-9-52 putting

an end to the several applications filed by the applicant:

With reference'' to the orders contained in Home and Services Department Order No. HS/2-1/284: dated 4-2-1949, Shri J.K. Oza, a Chief

Constable transferred from the service of the Police Department of the Region shall on retirement be allowed all the concessions admissible to him

under Government Resolution in the Finance Department No. 53/48 dated 4-10-1948. He is also allowed as a special case to have leave

preparatory to retirement i.e. four months'' leave on average pay combined with 24 months'' leave on half average pay, admissible to him under the

Fundamental and Supplementary Rules, and granted to him under Inspector General of Police''s orders No. S/l GPP/2236 and Est/K/11/200

dated 31-3-1949 and 10-1-1951.

The applicant admits that he left charge of his appointment in 1949, whereafter he has enjoyed four months leave on full pay and 24 months''

furlough on half pay and thereafter he has been getting pension.

Now when the State of Saurashtra was formed, a covenant by the Rulers of the former Kathiawar States was entered into, Article 16 of which

reads as under:

(1) The United State of Kathiawar guarantees either the continuance in service of the permanent members of the public services of each of the

Covenanting States on conditions which will not be less advantageous than those on which they were serving before the date on which the

administration of that State is made over to the Rajpramukh or the reasonable compensation.

(2) x x x x

(3) and the provisions of paragraph I st apply also in relation to any staff of Regional Commissioner, W.I.S. and G. States Region, which may be

transferred to the'' service of the United State of Kathiawar.

Clause (3) of the above Article places the staff of the Regional Commissioner on par with the servants of the Covenanting States, the provision

being that either they would be taken up as vants of the Saurashtra State, or given reasonable compensation.

The Saurashtra Government appointed a Public Service Commission to consider the cases of those servants of the Covenanting States as also of

the Region, who were drawing a salary over a minimum fixed by the Government and who were fit to be absorbed into the permanent service of

the Sau- rashtra State. The applicant''s case was considered by the Public Service Commission, before whom he admittedly appeared on 10-8-48

for this specific purpose. Relying upon the recommendation of the Public Service Commission, the Saurashtra Government decided not to take up

the applicant in their permanent service and chose to give him compensation under the Covenant, which took the shape of four months leave on full

pay and 24 months leave on half pay, the latter being given as a special concession, and pension.

Mr. Hathi the learned advocate for the applicant has first contended that the applicant was substantively appointed by the Saurashtra

Government and being a permanent servant his services could not be terminated except in accordance with the B.C.S.R. as applicable to the

Saurashtra State, but in this contention he is wrong. He has not been able to produce any order of confirmation of the applicant in the service of the

Saurashtra State.

The applicant was only provisionally appointed to some post In the Police Department, pending investigation of his case by the Public S-Trice

Commission whether he was a person fit to be taken up or should be given compensation under Article 16 of the Covenant. This naturally took

some time as there were thousands of cases to be considered. So it is not unnatural that the decision of the Government was communicated on 4-

2-49. The applicant was in the meantime simply continued in service, which under the circumstances must be deemed provisional pending the

decision of the Government whether to take him in permanent service of the State or to give him compensation.

The second point urged by Mr. Hathi is foased upon Article 311, Constitution of India on the ground that while the applicant was on leave, the

Constitution came into being and therefore he would be entitled to claim benefit of an inquiry under Article 311. But this contention is obviously

untenable, as the Government had decided to terminate his services in 1949 before the Constitution came into being. He was granted some leave

and pension as compensation under the Covenant. The Government in their order dated 4-2-49 were careful to say that he would be entitled to

compensation or pension as if he was a servant of the Government. There is therefore no substance in this point.

Mr. Hathi has relied upon the case of - Kashinath Patnaik Vs. Sri P.K. Kapila, I.A.S. Secretary, Supply and Transport, Govt. of Orissa, , in

support of his argument that, the applicant would be entitled ''to benefit of Article 311, but this was a case of a confirmed Government servant

holding a substantive post. The present case is different, as the applicant was not confirmed and holding substantively any post in the State of

Saurashtra. The next case of -Anup Singh v. The State'' AIR 1953 Pepsu 24 (B), relied upon is similarly not applicable, as that was also and case

of a permanent member of the service.

Mr. A.R. Baxi, the learned Advocate General, has first contended that an application for a writ of certiorari does not lie in the present case, the

order being purely an executive one. A Writ of Certiorari lies only to revise orders of a judicial or quasi-judicial tribunal or authority. We agree

with this contention.

In answer Mr. Hathi has relied upon the case of -''Ramchandra Rao v. Govt. of India AIR 1953 Hyd 201 (C). This case is distinguishable. There

the Government servant was removed after a departmental inquiry and the Writ of Certiorari was asked for in respect of the decision arrived at by

the authority authorised to hold the inquiry. In the present case there has been no inquiry; only a decision has been arrived at by the Government in

their exercise of the option granted by the Covenant that the applicant should not be absorb-, ed but be given compensation. The petition was

liable to be dismissed in limine, but as we have heard the advocates at length, we have gone into'' the merits of the case.

As regards the contention of Mr. Hathi that the applicant would be entitled to take advantage of Article 311 of the Constitution, the Advocate

General''s argument is that the act of Government complained of was done in 1949 before the Constitution came into force and the Constitution

not being retrospective as held in - ''Oswald Hugh Pedro v. State of Hyderabad AIR 1953 Hyd 98 (D), and - Keshavan Madhava Menon Vs.

The State of Bombay, , the applicant cannot rely upon Article 311.

The Advocate General has next urged that the applicant has been guilty of laches and delay. He has filed this petition in 1953. As we hold

against the applicant on merits, we do not seriously consider this contention.

The last argument advanced by the Advocate General is that the applicant cannot approbate and reprobate at the same time. He has already

accepted benefit of compensation in the shape of four months'' leave on full pay and 24 month''s leave on half pay and pension, and he is therefore

clearly estopped from coming to the High Court at this stage. We agree with this contention. In the result, this application fails and is dismissed with

costs.

Baxi J.

I agree.