Shri Haqiqat Rai vs The State of Himachal Pradesh

D.B. Lal, J.—This petition under Articles 226/227 of the Constitution of India is filed by Shri Haqiqat Rai for quashing the order dated 10-1-1972 (Annexure F) where-by he has been retired from service with effect from 10-1-1972 and further for a direction to Respondents 1 to 3 who are the State of Himachal Pradesh, Director of Education and Lieut. Commander N.C.C. to treat the Petitioner in Government service until he attains the age of 60 years which according to him he would complete on 10-1-1974, with consequential benefits ensuing therefrom. The case of the Petitioner is, that he was appointed as clerk in the erstwhile princely State of Jind on 4-7-1936. He was appointed in permanent capacity with effect from that date and continued, as such till the merger of Jind State in PEPSU which took effect on 20-8-1948. In this manner the Petitioner held a lien on a permanent post on 31-3-1938 and under F.R. 56(c) he is entitled to be retained in service till the day he attains the age of 60 years. After the merger of Jind State with PEPSU in 1948, an Ordinance known as PEPSU Ordinance XVIII of 2006 Bikrami was issued and its Sections 3 and 4 applied to the Petitioner all the laws and notifications already in force in Jind State and further the Petitioner was deemed to have been appointed by the competent authority of the merging State and continued his status as permanent Government servant. The PEPSU State was subsequently merged with the State of Punjab as a result to the State Re-organization Act and the date of merger was 1st November, 1956. The Petitioner thereafter continued to serve under the enlarged State of Punjab in the Education Department. On 29-3-1953, accordingly, a seniority list was issued by the Inspector of Schools, Sangrur (Annexure B) and the Petitioner was entered at Serial No. 37 with a further description that he was a permanent clerk who was recruited to the service on 4-7-1936. While the Petitioner was serving the State of Punjab, another re-organization of the States took place on 1-11-1966 and the Petitioner was allocated to the Union Territory of Himachal Pradesh. After this allocation the Petitioner was absorbed in the Education Department of Himachal Pradesh and was transferred to the N.C.C. Branch, Solan, on 20-3-1968. According to the Petitioner, his service conditions are governed by the same set of rules as were applicable to the employees of the Union Territory of Himachal Pradesh and as such F.R. 56(c) was applicable to his case. The position was further made clear by the rules framed by the President know as Himachal Pradesh Allotted Government Servants (Conditions of Service) Rules, 1968. Since the Petitioner held a lien on a permanent post with effect from 4-7-1936, and continued to hold a permanent post without interruption since that date, he was entitled to be retained in service till the day he attains the age of 60 years. Despite that position the grievance of the Petitioner is, that the Respondents have issued the impugned order of retirement (Annexure F) terminating the service of the Petitioner with effect from 10-1-1972. At one stage, the Petitioner asserts, that he was even asked to submit a medical certificate to indicate that he was fit to be continued in service. Accordingly the Petitioner had given such a certificate of fitness. According to the Petitioner the order of his retirement is illegal, ultra vires and without jurisdiction and must be quashed so as to entitle the Petitioner to serve the Government until the day he attains the age of 60 years. The Petitioner has of course prayed for a direction to that effect and for all consequential benefits arising therefrom.

The Respondents have contested the claim of the Petitioner by asserting, that he was no doubt employed by Jind State on 4-7-1936 but he was not holding a permanent post on that date. The Respondents contended in paragraph 2 of the affidavit of Shri Padam Swaroop Bansal-Respondent No. 2, that the Petitioner held a permanent post with effect from 13-4-1938. It was further revealed from the service book of the Petitioner that he was confirmed as a senior clerk with effect from 21-6-1952. The Respondents, therefore, concluded that the Petitioner did not hold a lien on a permanent post on 4-7-1936, and as such he was not entitled to the benefit of F.R. 56(c) and was rightly retired with effect from 10-1-1972. Since the Petitioner has no right to continue in service until he attains the age of 60 years, he can neither get the order of retirement quashed nor can he obtain the direction so that he can be considered to be in Government service until he attains the age of 60 years. According to the Respondents there is no violation of any rule or provision of the Constitution and the order of retirement (Annexure F) is quite valid and is in accordance with the rules. Article 311 is thus not attracted and no relief can be granted to the Petitioner.

The central point that is presented for determination relates to the application of F.R. 56(c) which may be extracted as below:

F.R. 56(c): "A ministerial Government servant who entered Government service on or before the 31st March, 1938 and held on that date-

(i) a lien or a suspended lien on a permanent post, or

(ii) a permanent post in a provisional substantive capacity under clause(d) of Rule 14 and continued to hold the same without interruption until he was confirmed in that post shall be retained in service till the day he attains the age of sixty years.

It was, therefore, manifest that the Petitioner has to prove that he held a lien on a permanent post on or before 31-3-1938 and only thereafter he can claim the benefit of retirement after he attains the age of 60 years. In this connection there is a serious controversy as to whether he held a lien on a permanent post on 4-7-1936. It is, however, admitted by the Respondents that F.R. 56(c) did apply in the case of the Petitioner and the only contention is that the condition laid down in this rule has not been fulfilled by the Petitioner. In fact no exception can be taken to this that the rule F.R. 56(c) was made applicable to the employees of erstwhile State of Jind who happened to be allocated ultimately to the Union Territory of Himachal Pradesh. It is so clear from the letter (Annexure C) dated 31-5-1967 and also from the letter (Annexure D) dated 18-12-1968 issued by the Under Secretary to the Government of Himachal Pradesh. The subsequent letter, Annexure ''D'', contains an enclosure which is letter dated 25-3-1968 and F.R. 56(c) has been made specifically applicable to the employees of the erstwhile State of Punjab who were allocated to Himachal Pradesh. The Respondents have further admitted that the Petitioner started service in Jind State as clerk on 4-7-1936 and this fact has also been acceded to, that the Union Territory of Himachal Pradesh asked for his medical examination and the Petitioner was declared fit to serve the Government. However, the contention of the Respondents is that a case for extension of service was proposed for the Petitioner and in that connection the fitness certificate was obtained.

Thus it can admit of no doubt that the employees of the erstwhile princely State of Jind were entitled to the benefit of F.R. 56(c) and could be retained in service till they attained the age of 60 years, provided they fulfilled the conditions laid down in that rule. In Shri Jagan Nath Sharma v. The Union of India and Ors. 1969 S.L.R. 551, a learned Judge of Delhi High Court (a case which arose from Himachal Pradesh) held that F.R. 56(c) can be extended to a ministerial Government servant who joined service of a princely State and was confirmed before 31-3-1938 and allocated to Himachal Pradesh on reorganization of the States. To a similar effect is another decision of that High Court of which the report is Lala Ram Superintendent, Deputy Commissioner''s Office v. Union of India and Ors. 1969 S.L.R. 455. However, the point involved in that case was as to whether the incumbent was required to be holding a ministerial post on the date''s of retirement or on any date prior to the date of retirement. It was held that the rule required that he should hold a ministerial post on the date of retirement.

The Petitioner relied on several orders which were issued by the Jind State starting from 4-7-1936 when he was admitted to the service in that State. These are Annexure A-I. to A-VII. On 4-7-1936 (Annexure A-I) the Household Minister of Jind State made the appointment of the Petitioner as clerk on a salary of Rs. 25 per month plus Hazuri allowance and he was ordered to join that post. The appointment was made for the office of Personal Secretary. It is to be noticed that in this appointment it was not specified that the Petitioner was appointed in temporary capacity. Since the appointment was made for the office of the Personal Secretary, on 8-7-1936 (Annexure A-II) one Hari Gopal made an endorsement that the Petitioner was performing his duties from 4-7-1936 and necessary record be prepared in respect of him and for that he submitted the note to the Secretary, Ijlass Khas-perhaps the service record was to be maintained in the office of the Secretary Ijlass Khas. Thereafter on 9-7-1936 one Jagan Nath of the office of Ijlass Khas made the order that the necessary entries be made for the Petitioner in the official record. Thereafter on 13-7-1936 one Prem Chand clerk of that office wrote a significant note (Annexure A-III) which is reproduced as below:

No. 473/P.

Sir,

In case of permanent employment instead of making entries in the record, service book will have to be prepared for which particulars of the Applicant are needed. Therefore, it is requested that the requisite particulars under rules may be called for.

Sd/- Prem Chand, Clerk. 13-7-1936.

This note of Shri Prem Chand Clerk decidedly evinces the intention of the posting of the Petitioner as a permanent clerk with effect from 4-7-1936. That was the reason, why the service book was required to be prepared and particulars regarding the Petitioner were to be made known to the office. If the Petitioner was not employed permanently, where was the necessity of making this note and the intention being clear as it is, the appointment of the Petitioner under Annexure A-I by Shri Ajaib Singh is to be deemed to be an appointment in permanent capacity. This inference seems to be inevitable if all these annexures are read together coupled with the entries which were made in the service book. After this note Annexure A-III was written by Shri Prem Chand Clerk, a compliance was made and one Jagan Nath ordered on 14-7-1936 that the particulars may be called for and the Petitioner was informed to give these particulars. Annexure-V dated 14-7-1936 makes the position clear. On 15-7-1936 Shri Haqiqat Rai was asked to give the particulars which he gave on 16-7-1936 (Annexure VI). Thereafter the matter was closed on 16-7-1936 with a note from one Shri Dilbagh Singh Dhesi that the particulars were supplied by the Petitioner and the case was submitted to the Secretary Ijlass Khas. If we go through all these annexures the ultimate analysis to which one reaches is, that the Petitioner was employed in permanent capacity right from 4-7-1936. At this stage a little reference is needed to the service book particulars. The Respondents case in para No. 2 of their reply-affidavit is (a) that the Petitioner was not holding a permanent post as no such entry existed in the service book, (b) that he was holding a permanent post with effect from 13-4-1938, and(c) that the Respondents have no knowledge of annexures, A-I to A-VII relied upon by the Petitioner and, therefore, the same were not admitted. As I shall presently disclose the service book entries rather exist in favour of the Petitioner and as such the first contention of the Respondents is not correct. As to the second contention that he was holding a permanent post with effect from 13-4-1938, the learned Counsel for the State could not trace out the relevancy of this date with reference to the permanent character of the post held by the Petitioner on 4-7-1936. Rather he contended during the course of arguments that the service book according to him indicates that the Petitioner was made permanent with effect from 21-6-1952. Therefore, the date 13-4-1938 is neither here nor there and seems to have been wrongly written in the reply. As regards third contention that the Respondents have no knowledge about the annexures A-I to A-VII, the learned Counsel for the Petitioner urged with considerable force that this state of pleading cannot but be held to construe that the Respondents have admitted the contents and effect of annexures A-I to A-VII as no specific denial of the same has been made by them in their return. For this the learned Counsel relies on Jahuri Sah and Ors. v. Dwarika Prasad Jhunjhunwala and Ors. 1967 S.C. 109. Their Lordships have held that to say that Defendant has no knowledge of a fact pleaded, by the Plaintiff is not tantamount to a denial of existence of fact not even an implied denial. As such the said fact can be taken to be admitted. Applying the ratio of this decision to the facts of the case it may not be difficult to hold that Annexures A-I to A-VII are admitted by the Respondents and as I have already stated before, in ultimate analysis of these annexures, there is no escape but to give a finding that the Petitioner was appointed in permanent capacity with effect from 4-7-1936. As to the service book entries, it is evident that the Petitioner started his service with effect from 4-7-1936. Underneath the appropriate column specifying the date of promotion, degradation, transfer or termination, several dates have been noted, as obviously the Petitioner was transferred from one department to the other. It is further noticed from the service book entries that while the Petitioner was promoted as senior clerk or as Assistant, he was made to officiate against the higher post in a temporary capacity. Thereafter he was made permanent as senior clerk or as Assistant and entries with regard to that fact, were made in the service book. The learned Counsel for the State seems to have inferred from these entries that he was made permanent from 21-6-1952 but that entry related to his posting as senior clerk and not to his original posting as clerk for which he was already made permanent right from the beginning. In the service book there is a note dated 24-10-1956 by the Military Secretary to the Ruler of Jind which is counter-signed by the Deputy Secretary to the Government of Punjab and this note may be reprodueced as it is self revealing:

Certified that the service of Shri Haqiqat Rai clerk remained in the Hazuri Department of erstwhile Jind State with effect from 4-7-1936 to 31-3-1944 and also deputed in the civil list of Maharaja Jind from 1-4-1944 upto 20-7-1949 and that he was permanent employee of the State.

Sd/ Harbans Singh, Military Secretary H.H. Maharaja Rajindra Bhadur of Jind.

24-10-1956.

COUNTERSIGNED.

Sd/-Illegible Deputy Secretary to the Government Punjab Secretariat Establishment.

This certificate was appended to the service book because as a result of integration of State with greater Punjab, service particulars of incumbents including Haquiqat Rai were required to be given for the period they served the erstwhile State of Jind and as a result to that enquiry the Head Master of Sangrur was asked for the Petitioner and there is a letter to that effect pasted in the service book. The certificate was then obtained from the Military Secretary and as evident and this certificate indicates that the tenure of service of the Petitioner with Jind State was permanent right from 4-7-1936. Relying upon this certificate it is not difficult to hold that the Petitioner was employed all throughout in permanent capacity while he served the Jind State.

The learned Counsel for the Petitioner also relied upon Annexure ''B'' which is a seniority list issued by the Director of Public Instructions (Punjab) and is dated 29-3-1957. In that list the service tenure of the Petitioner was noted as permanent while his date of entry in service is entered as 4-7-1936. The learned Counsel for the State, however, took exception to this document by submitting that the Petitioner was already a permanent senior clerk with effect from 21-6-1952 and, therefore, in this seniority list which was prepared on 29-3-1957, he was bound to be mentioned as a permenent Government servant. At any rate in this document the date 21-6-1952 is not to be found written anywhere and that is why the learned Counsel for the Petitioner has taken assistance from this document by pleading that the date mentioned therein in the relevant column is 4-7-1936 and not 21-6-1952 and the Petitioner should be taken to have been employed in permanent service with effect from this date. The learned Counsel for the State rather insisted that the office notes which were written by the clerks of Jind State could not have made the Petitioner permanent and a specific order to that effect was required to be passed. While this argument was raised I called upon the learned Counsel for the Petitioner to produce before the Court the original notes which he has done and I find that Annexures A-I to A-VII are the correct translations of these notes. I need not repeat what I have stated above that Annexure A-III read with other annexures relevant thereto and the entries made in the service book especially the certificate given by Shri Harbans Singh make the position abundantly clear and it is not difficult to infer the intention of the department to have employed the Petitioner right from 4-7-1936 in a permanent capacity. Therefore, in the circumstances it was not required that a separate order should have been issued making the Petitioner permanent when that fact is clear from all the noting that has been made concerning his employment. Then the learned Counsel for the State insisted that the service book was an important document and unless the rank of the Petitioner was known from the service book he should not be presumed to be made permanent with effect from 4-7-1936. In that connection he relied upon State of Assam and Anr. v. Daksha Prasad Deka and Ors. 1970 (3) Supreme Court Cases 624. In that case it was held that for the purpose of superannuation the date of birth noted in the service book unless it is incorrect must be taken regard of. No one has disputed this proposition. I have already stated that even the endorsement made on the service book indicated that the Petitioner was permanently employed while he served in Jind State and at any rate it was no where mentioned that he was not permanently employed on 4-7-1936. Therefore, the decision to which I have arrived at, is not in conflict with any entry that was made in the service book of the Petitioner. The learned Counsel for the Petitioner submitted that the service book entries and also annexures A-I to A-VII of which the original have been filed are 30 years old documents and these are being produced from a proper custody. As such these documents can be taken into consideration. I subscribe to this argument of the learned Counsel and availing of this argument I am again on firmer ground to hold that the Petitioner was employed in permanent capacity right from 4-7-1936.

In view of this finding which I have given above, jit is not difficult to apply F.R. 56(c) in the case of the Petitioner. Admittedly, he is a ministerial Government servant and held a lien on permanent post on 4-7-1936 which is a date before 31-3-1938. He has continued as a permanent Government servant and naturally he will continue to be so till he attains the age of 60 years. Therefore, his case clearly falls within F.R. 56(c) and he could not be retired on any day before he attains the age of 60 years. For these reasons, the order of retirement (Annexure F) that has been issued by the Respondents must be quashed and the Petitioner is to be treated in Government service upto 10-1-1974 when he attains the age of 60 years. The Petitioner would of course be entitled to all the benefits of service which will accrue to him upto that date. The petition is, therefore, allowed and Annexure ''F'' dated 10-1-1972, the order of his retirement from service with effect from 10-1-1972 is quashed. The Respondents are further directed to treat the Petitioner in Government service until he attains the age of 60 years which he shall do on 10-1-1974. The Petitioner shall be entitled to all the consequential benefit of continuous service, salary and allowances etc. upto that date. The Petitioner is also entitled to his costs from the Respondents. The counsel fee to be assessed at Rs. 100.