Shiv Dayal Singh etc. vs Union of India (UOI) and Another

Chet Ram Thakur, J.—The Petitioners are Auditors in the office of the Accountant General, Himachal Pradesh. Formerly the post of Auditor was nomenclatured as Upper Division Clerk and its scale of pay was Rs. 130--300, but now the same has been revised to Rs. 330--560. The terms and conditions of the service of the Petitioners are those as contained in the Manual of Standing Orders (Administrative) Volume I issued by the Comptroller and Auditor-General of India. According to chapter VI, paragraph 287 of the aforesaid Standing Orders, it is prescribed that all clerks who are recruited direct to the posts of Upper Division Clerk must pass a departmental examination in order to render them eligible for confirmation in the posts of Upper Division Clerk. The said examination is ordinarily arranged to be held in each office once in six months, i.e., in May and November of each year. The qualifications prescribed for the Upper Division Clerks to enable the eligible persons to take that examination are that the Upper Division Clerks who have rendered one year''s service, continuous or otherwise on 1st May and 1st November are eligible to appear in the departmental examination. They are allowed four chances in all to pass the examination. A person is deemed to have not availed of a chance if he does not appear in the examination. In order to gain certificate of quasi-parmanency in their favour under the Central Civil Services (Temporary Service) Rules, 1965 (hereinafter called the Rules of 1965) the qualifying of the examination is also essential. There are certain other benefits accruing to a person, who has qualified the examination. According to the petitions they had qualified themselves for entitling them to appear in the aforesaid examination and as such they applied to the Accountant General (Respondent No. 2) for permitting them to appear in the examination. They were permitted, vide Annexure PB, to take their examination to be held on 20th, 21st and 22nd of May, 1974. But, according to the Petitioners, the Respondent No. 2 by his order, Annexure PC, dated 18th May, 1974, ordered that the Petitioners and many others had been debarred from appearing in the Departmental Confirmatory Test (shortly called the DCT) scheduled to be held with effect from 20-5-1974. The Petitioners have, therefore, challenged this order, Annexure PC, on the ground that the order was passed without affording them any opportunity to show cause against the proposed action. This order would result in Petitioners losing one chance as also in loss of their seniority and might deprive them of the benefit of raising pay and confirmation. The order does not assign any reason, why they have been debarred from taking the examination. The order has been passed in violation of the principles of natural justice. The orders are also against the Standing Orders, inasmuch as there is no provision made in the rules to debar a person from taking examination on any ground whatsoever. Further, the order was arbitrary and violative of the principles of equality of opportunity and equality before law.

In their return the Respondents have admitted that the D.C.T. is held twice a year and persons, who have rendered one year''s continuous service as on 1st May and 1st November of each year are eligible to appear in the examination in May and November respectively. It is also admitted that four chances are allowed in all to pass the examination. The Respondents, however, contended that the Petitioners had gone on strike on 9th May, 1974, and thereby they had suffered break in their service resulting in forfeiture of their past service and further they became ineligible to appear in the examination. They had also taken up a preliminary objection to the effect that the petition deserves dismissal on account of suppression and concealment of true facts. Learned Advocate-General submits that it was because of the strike in which the Petitioners participated that this action to debar from appearing in the D.C.T. was taken.

Regarding the preliminary objection I may say that the same is untenable. A glance at the order, Annexure PC, would reveal that there is no mention that this action was taken because of the Petitioners having participated in the strike on 9th May, 1974. Therefore, there is no question of concealment of facts when the order itself does not indicate the grounds on which this action was taken.

Learned Counsel for the Petitioners has submitted that there is no speaking order inasmuch as no reasons. have been assigned for taking this action especially when the Petitioners were eligible under the rules to appear in the D.C.T. The order, Annexure P.C., reads as under:

OFFICE OF THE ACCOUNTANT GENERAL, HIMACHAL PRADESH & CHANDIGARH, SIMLA Office Order No. Estt. 1/28 Dated 18-5-1974.

The following Auditors have been debarred from appearing in the Departmental Confirmatory Test scheduled to be held with effect from the 20th May, 1974.

Sd/-(A.S. Mohindra), Sr. Dy. Accountant General (A&E).

Below the aforesaid order are given the names of as many as 53 persons including the Petitioners, who have been debarred from taking the test. The submission of the learned Counsel for the Petitioners is correct that the order does not assign any reason for taking such an action debarring them from the test especially when they were eligible and the Accountant General had by his order, Annexure PB, permitted them to take the test. The names of the persons including the Petitioners who had been permitted to take the examination are indicated in a schedule attached to Annexure PB. It was all the more necessary for the Respondents to have assigned reasons which compelled them to debar the Petitioners from taking the examination especially when they had once been permitted to do the same. Therefore, on this ground also the order is bad.

The further question that requires consideration is whether the order, Annexure PC, has been made in violation of the principles of natural justice. The submission made by the Respondents in. paras 3, 4 and 6 is that the Petitioners had been debarred because of their having participated in the strike from 9th May onward and they have suffered break in their service resulting in forfeiture of their past service and thereby becoming ineligible to appear in the examination. The Respondents have relied on F.R. 17 (1) as also on Rule 7 of the Central Civil Services (Conduct) Rules, 1964 (hereinafter called the Rules of 1964) in support of the action taken by them. F.R. 17 (1) is to the following effect:

Subject to any exceptions specifically made in these rules and to the provision of Sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post and shall cease to draw them as soon as he ceases to discharge those duties. Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence.

The proviso to Sub-rule (1) of Rule 17 says that the person who absents from duty without authority shall not be entitled to any pay and allowances during the period of such absence, but it nowhere talks of forfeiture of the past service. Rule 7 of the Rules of 1964 says that:

No Government servant shall-

(i) engage himself or participate in any demonstration which is prejudicial to the interest of the sovereignty and integrity of India....

(ii) resort to or in any way abet any form of strike or coercion or physical duress in connection with any matter pertaining to his service or the service of any other Government servant.

This would therefore, show that a Government servant who resorts to any strike etc. in violation of Rule 7(ii) of the Rules of 1964 is liable to disciplinary action. But these rules do not contemplate forfeiture of the previous service. Learned Advocate-General has relied on All India Bank Employees'' Association Vs. National Industrial Tribunal and Others, ; Kameshwar Prasad and Others Vs. The State of Bihar and Another, ; S. Vasudevan and Others Vs. S.D. Mital and Others, , Ramrao Laxmikant Shirkhedkar Vs. Accountant General, Maharashtra and Another, and Radhey Shyam Sharma Vs. The Post Master General Central Circle Nagpur, to support his view that a perusal of Article 19(1) of the Constitution of India will show that there is no fundamental right to strike. The principle laid down in these authorities cannot be disputed that there is no fundamental right of an employee to resort to strike for using it as a means of redressal of his grievances. Therefore, these authorities cannot be availed of by the learned Counsel for the Respondents, inasmuch as the impugned order does not disclose that this action has been taken because the Petitioners had gone on strike which was not their fundamental right. Even if they had resorted to strike, yet it was incumbent upon the Respondents to have given an opportunity to the Petitioners as to what they had to say about the action proposed to be taken against them, and there is definitely violation of the principles of natural justice, inasmuch as the Petitioners were not afforded any opportunity to show cause. I have already stated above that neither F.R. 17(1) nor Rule 7 of the Rules of 1964 make any mention of a penalty of forfeiture of the past services, for resort to strike by an employee in contravention thereof. There cannot be an automatic break or forfeiture of the previous service. If it was contemplated by the Respondents to forfeit the previous service under the shelter of the order Annexure RA, dated 23-12-1971 and Annexure RB, dated 9-5-1974, even then it was obligatory to issue a notice to the Petitioners who had proceeded on strike to show cause why disciplinary action against them for violation of Rule 7 of the Rules of 1964 should not be taken. Annexure RA is an office order issued by the Accounts Officer in accordance with the instructions received from the Government of India. It had been stated there in that where an officer who is on unauthorised absence from duty without any authority, shall not be entitled to any pay and allowances during the period of such absence, apart from resulting in loss of pay and allowances for the period of such absence would also constitute a break in service, entailing forfeiture of past service for all purposes, unless the break itself is condoned and treated as dies non. Annexure RB is an order issued under the signatures of the Accountant General. It says that the Accountant General had come to know that the employees of the office were observing pen down strike in pursuance of a call from Class III and Class IV Association and he warned the employees that in pursuance of the principle ''no work'', ''no pay'', they are liable to forfeit pay on the days on which they carry out no work besides forfeiture of service and other penalties stipulated in the rules. In so far as Annexure RC is concerned, the same is dated 21-5-1974. The Petitioners had already filed the writ petition in the Court and this order was passed only thereafter, and, therefore, it has got no relevance. Annexure RD is a memorandum of warning and it reproduces the Rule 7 of the Rules of 1964 and further it is stated therein that the persons who would absent themselves from work without reasonable excuse shall be deemed to have contravened Rule 119 of the Defence of India Rules rendering themselves liable to action in terms of those Rules. This is an order, dated 7-5-1974, signed by the Sr. Deputy Accountant General (A&E). Therefore, from the reading of this warning also it is abundantly clear that if they had resorted to strike despite these warnings they were liable to disciplinary action for which an opportunity was necessarily to be given to the Petitioners to show as to why action should not be taken against them. According to Chandra Bhavan Boarding and Lodging, Bangalore Vs. The State of Mysore and Another, , following A.K. Kraipak and Others Vs. Union of India (UOI) and Others, it had been observed that the dividing line between an administrative power and quasi judicial power is quite thin and is being gradually obliterated. The principles of natural justice apply to the exercise of the administrative powers as well. But those principles are not embodied rules. What particular rule of natural justice, if any, should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or body of persons appointed for the purpose. In the instant case although it is an administrative order even then the observance of the principles of natural justice in view of these weighty observations of their Lordships of the Supreme Court could not be ignored and an opportunity had necessarily to be afforded to the Petitioners before any action was (taken. Similarly it had been laid down in State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, that even administrative orders which involve civil consequences have to be passed consistently with the rules of natural justice. Therefore, there has been a clear violation of the principles of natural justice inasmuch as no opportunity had been afforded to the Petitioners before this action was taken under the impugned order.

Rule 11 of the Rules of 1965 provides for penalties both minor and major. A perusal of this rule would reveal that forfeiture of the previous service has not been provided for to be imposed as a penalty. This is a penalty which is not provided for either under F.R. 17 or Rule 7 of the Rules of 1964 or under Rule 11 of the Rules of 1965 and, therefore, if any such penalty was imposed, the Petitioner had a right to be heard in accordance with the rules of natural justice.

Learned Advocate-General has contended that these instructions regarding the examination in the Manual are administrative instructions and no right or claim can be based thereon and in support of his submission reliance is placed, firstly, on I.N. Saksena Vs. State of Madhya Pradesh, In this case the Appellant who was a District and Sessions Judge in the service of the State of Madhya Pradesh, was in the normal course due for retirement on completing the age of 55 years in August 1963 but on February 28, 1963, the Government of Madhya Pradesh issued a memorandum to all the Collectors in the State. Copy of this memorandum was also sent to the Registrar, High Court, as well as the Finance Department and the Accountant General, stating therein that the State Government had decided that the age of compulsory retirement of State Government servants should be raised to 58 years subject to the following exceptions:

2 to 4....

Notwithstanding anything contained in the foregoing paragraphs, the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months notice without assigning any reason...the power will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years.

These orders were to take effect from the 1st March, 1963. It had further been stated therein that necessary amendments to the State Civil Service Regulations will be issued in due course. In consequence of this memorandum the Appellant also continued in service even after August, 1963. But on September 11, 1963, the Government sent an order to the Appellant in the following terms:

In pursuance of the orders contained in General Administration Department Memorandum No. 433-258-1 (iii)/63, dated the 28th February, 1963, the State Government have decided to retire you with effect from the afternoon of the 31st December, 1963.

On November 29, 1963, a notification was issued by the Finance Department which was published in the Madhya Pradesh Gazette, dated December 6, 1963, directing further amendments to be made in the Fundamental Rules applicable to the State of Madhya Pradesh, namely that "All Rules in Chap. IX of the said Rules regarding Compulsory Retirement shall be deleted and the following shall be inserted as a new Rule 56....". The Appellant had challenged this order of retirement in the High Court of Madhya Pradesh but his petition was dismissed holding that the memorandum of February 28, 1963, was in itself a rule under Article 309 and, therefore, the Appellant was rightly retired under that rule. Further that if the memorandum was not a rule the Appellant could not have continued in service after August, 1963, in view of the old rule and could not, therefore, get the benefit of the new rule raising the age of retirement to 58 years. On appeal to the Supreme Court it was held that the memorandum was merely an executive instruction and not a rule within the meaning of Article 309. Since there was an amendment made to the Fundamental Rule 56 by a notification, dated 29th November, 1966, which was published in the Gazette, dated 6th December, 1963, this part of the fifth paragraph of the memorandum dated 28th February, 1963, was not included in the amendment of F.R. 56 and it was, therefore, held that the retirement cannot be made on the basis of the memorandum as it was merely an executive instruction when there is a rule made subsequently in which that condition as is laid down in the memorandum did not exist. Therefore, this authority has got no bearing on the facts of the present case.

The second authority is G.J. Fernandez Vs. State of Mysore and Others, . It says that Article 162 does not confer any power on the State Government to frame rules and it only indicates the scope of the executive power of the State. Of course, under such executive power, the State can give administrative instructions to its servants how to act in certain circumstances, but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules, it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefor.

In Pt. Sunder Lal Vasudeva Vs. State of Punjab, also it has been laid down that the taking of the decision by the Government to frame a rule cannot be equated with the rule itself. When a rule is made it has to be published, so that all those people to whom it applies can come to know of it. Civil Service Rules Constitute the terms of the contract between the employer and. the employed and no term can, therefore, be enforceable as binding unless it is known to and accepted by both parties.

Support is also drawn from Bhupinder Singh Vs. State of Haryana and Others, which says that departmental instructions regarding the starting of departmental inquiry and the passing of suspension order pending inquiry are merely administrative and have not the force of statutory rules and the enquiry cannot be vitiated because of charge-sheet having been served upon the Petitioner after he was suspended, when there is no suggestion, of any prejudice having been suffered by the Petitioner. Moreover, the executive instructions are not mandatory but regulatory. Even if there has been any breach of such executive instructions, the breach does not become justiciable and would not justify the issue of a writ. But in view of the latest ruling reported as Union of India v. K.P. Joseph and Ors. 1973 (1) S.L.R. (S.C.) 910, administrative order can confer rights and impose duties and the Court with enforce that right. It is because an administrative order can abridge or take away rights and'' that we have imported the principle of natural justice of'' audi-alteram partem into this area. The authorities cited by the learned Counsel for the Respondents, therefore, will not be applicable in the present case as these instructions which are contained in the Standing Orders create rights and impose duties in the sense that the employees, WHO are appointed as Upper) Division Clerk and now designated as Auditors, after they have put in one year''s continuous service in May or November of each year they are eligible to appear in the test which is a condition precedent for the confirmation of an employee and whereafter he is entitled to certain consequential benefits. So this is a right created in favour of the employees and duty on the employer is imposed to consider for confirmation the persons who after they had qualified themselves for confirmatory test had taken the exam and passed the same. Their seniority etc. all depend upon their confirmation after having qualified this test after on year''s service. If an employee fails to appear when he is qualified then he loses that chance and, as already stated, there are only four chances available to an employee and if he loses all those chances then he is liable to be reverted or discharged from service. Therefore, in these circumstances, these instructions as contained in the Standing Orders, Annexure PA, are justiciable when they abridge or take away the right of the employee. So, it is futile on the part of the learned Advocate-General to say that action taken under these administrative instructions is not justiciable and that the Petitioners have got no right to the issue of a writ. The authority State of Assam and am. v. Basanta Kumar Das and Ors. 1973 (1) S.L.R. (S.C.) 921] also has got no relevancy on the facts of the present case because it was a question of compulsory retirement on the ground of unsuitability whereas here in the instant case the Petitioners have been deprived of their right to take the examination for purposes of confirmation and other consequential benefits accruing thereupon under these instructions.

Learned Advocate-General has further contended that the chances of promotion cannot be said to be a condition of service and relying on Mohammad Shujat Ali and Others Vs. Union of India (UOI) and Others, he argues that no writ can issue. This as a matter of fact is a case under the proviso to Section 115(7) of the States Re-organisation Act, 1956 which talks about the variations in the conditions of service, which under the Act cannot be done without the previous approval of the Central Government. In the instant case it is mandatory for the Petitioners as Upper Division Clerks (now Auditors) to pass the D.C.T., failing which they cannot be considered for confirmation. So, there is no question of chances of promotion but it is a right as envisaged under Article 16 for being considered if they qualify the test for confirmation. The Petitioners have never said that their chances of promotion are in any way hampered or jeopardised but what they say is that in order to make themselves eligible for consideration for confirmation it is essential for them to pass the D.C.T. as required under para 287 of the Standing Orders (Administrative) Volume I.

Reliance is also placed on Arun Kumar Bhattacharjee and Others Vs. State of West Bengal and Others, which says that public servant has no right to a promotion or to claim seniority in the grade or cadre to which he is placed. Article 311(2) has no application to such a case. There can be no dispute with the principle. But in the case in hand they are not claiming promotion but what they claim is their right to appear in the examination on which has been made a condition precedent for consideration for confirmation to the posts they are holding. Further, the Standing Orders also make the Petitioners eligible for taking the D.C.T. Once it is admitted by the Respondents that they had put in one year''s service prior to the passing of the impugned order they could not be debarred and as such there is a clear violation of the Standing Order 287 as well.

These were the only points raised. Consequently I allow this petition and quash the order, Annexure PC, whereby the Petitioners have been debarred from taking the D.C.T. and they shall be permitted to a fresh examination to be held in place of the examination from which they had been debarred and they shall be considered for confirmation, seniority, etc. alongwith the other persons'' who had taken the previous test held in May, 1974, provided of course the Petitioners pass the test.

No order as to the costs.