State of Bombay vs Advani (N.T.)

This is an appeal by the State against the decree passed by the City Civil Court for a sum of Rs. 8,062-2-0 made against it in favour of the plaintiff.

The short facts in the case are as follows :

The plaintiff entered the service of the State in 1933 as an Assistant Director of Public Health, and was in due course of time confirmed as a permanent holder of the office. He was due to retire at the age of 55 on 18 October, 1953. He says in the plaint that in the ordinary course he would have been promoted to the post of the Director of Public Health in about February 1953 but, as he was due to retire within about seven months, he agreed to work as a Junior Malariologist in the same department and he was assured by his superior officers that even after superannuation he would be continued in service from 18 October, 1953 to 13 March, 1955. On 14 October, 1953, before due date of his retirement, Government issued an order as follows :

"Sri N. T. Advani, Junior Malariologist, Malaria Organization.

Government of Bombay, Local Self-Government and Public Health Department

Resolution No. HDO 1853 - Bombay Castle, 14 October, 1953 [Letter from the Director of Public Health for the Government of Bombay, No. S. 2(M)-A, dated 7 July, 1953.]

Resolution. - Government is pleased to directed that Sri N. T. Advani, Assistant Director of Public Health, now working as Junior Malariologist, Malaria Organization, should be re-employed for a period from 18 October, 1953, the date of his superannuation, to 13 March, 1955, the date on which the sanction for the post of Junior Malariologist will expire.

The requisite notification should be published in the Bombay Government Gazette.

(By order and in the name of the Governor of Bombay)

G. B. DESHMUKH, Deputy Secretary to Government."

The notification in respect of the same was published in the Government Gazette and this order or direction was communicated to the plaintiff, the Assistant Director of Public Health, Malaria, at Poona, and also to the Accountant-General, Bombay, as required by law. In pursuance to this order, which he accepted, he continued to work as a Junior Malariologist, when on 13 May, 1954, he was informed by the Director of Public Health that his services would be terminated. He made representations to the Government for continuance of his service but ultimately on 2 June, 1954, he was relieved of his office and another gentleman was appointed to take charge from him. In answer to his representation, the Government wrote to him that he was re-employed as a Junior Malariologist on a purely temporary basis, and though the order of his re-employment specified that he was to be in service up to 13 March, 1955, it was open to the Government to determine his appointment before the expiry of the said period. The plaintiff alleged that he was relieved from service without proper authority, that there was no order or notification by the Government terminating his service, that he could only be discharged from service by an authority competent to appoint him and that the termination of his service was in violation of the service rules and Art. 311 of the Constitution and was ultra vires, wrongful and void. In the result, he claimed damages amounting to Rs. 8,062-2-0. The plaintiff also contended that, in any event, the order made by the Director of Public Health on 8 May, 1954, and another dated 21 June, 1954, did not amount to termination of his service and, therefore, he was entitled to the balance of his pay, for the period in dispute.

The State contested the suit. It admitted the order dated 14 October, 1953, but contended that since the appointment of the plaintiff was for a period exceeding one year, it was subject to the consultation of the Public Service Commission, and inasmuch as the Public Service Commission did not confirm the re-employment, his services were properly terminated by the Government by its letter dated 8 May, 1954. The State also contended that the order dated 14 October, 1953 did not amount to a contract of service and that the notice given by the plaintiff was not in accordance with law. Assuming that it were a contract, the State denied that it was valid for the whole period and binding upon it. The State denied its liability for the sum of Rs. 8,062-2-0 asked for by the plaintiff.

The learned Judge held that the notice was valid, that the resolution and/or order dated 14 October, 1953, taken along with the communication dated 16 October, 1953, amounted to a contract of service as alleged, that it was valid and that the contract of service was not validly terminated by the defendant. The learned Judge awarded damages as claimed by the plaintiff. It is this judgment that is sought to be challenged in this appeal.

* * * 5. It is contended by the learned Government Pleader that the order dated 14 October, 1953, does not amount to a contract of service in respect of which the plaintiff is entitled to sue. He relies for the purposes of his argument on Art. 299 of the Constitution of India and also the decisions of the Calcutta High Court in Subodh Ranjan Vs. Major N.A. O''Callaghan and Another, and Lakshmi Narain Gupta Vs. A.N. Puri and Another, . The decisions referred to by him no doubt support his contention. It is desirable, however, to examine the question apart from authorities in the present case. Article 299 of the Constitution provides by Sub-clause (1) as follows :

"All contracts made in the exercise of the executive power of Union or of a State shall be expressed to be made by the President or by the Governor ... of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor ... by such persons and in such manner as he may direct or authorize."

First part of this article is simple and says that all contracts shall be expressly made either by the President or by the Governor of the State, as the case may be; the second part and more important part says that all such contracts, which means contracts referred to in the first part of the paragraph and all assurances of property, etc., shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorize. It is clear from the second part of Art. 299 that what is required is that all contracts which the President or the Governor may make must be executed in the manner and by the authority prescribed by the President or the Governor. If rules prescribing the mode of executing such contracts have been made, then whether or not the requirements of Art. 299 are satisfied will depend upon the nature of the contract in question. Under the second part of the article, on the dates on which the Constitution came into force, the Government of Bombay has made provision for the execution of certain kinds of contracts in the specified manner, by a Notification No. G.R., H.D. No. 1758/6, dated 26 January, 1950 (amended by G.R., H.D. No. 1758/6 dated 24 July, 1950). Under this notification all contracts relating to assurance in respect of properties, conveyances of properties or for purchases and other specified matters are required to be entered into on behalf of the Government, as directed there. But the rules do not require that contracts of employment to the services must be executed in a particular manner. One may in this respect refer with advantage to the Fundamental Rules framed by the Secretary of State under Art. 96A, Government of India Act, 1919, and still in force, as also the Bombay Civil Services Rules. Civil Services (Classification, Control and Appeal) Rule 3 makes the rules applicable to every person in the whole-time civil employment of a Government in India. As to Central Services in Class I, rule 29 directs that all first appointments shall be made by the Secretary of State. Other rules provide for all first appointments by other authority there named. In respect of Provincial Services, rule 38 provides that all first appointments shall be made by the local Government or an authority empowered by the local authority in that behalf. It is clear that normally so far as appointment to the services is concerned, it is intended to be by an order of appointment by an appropriate authority and not by document. Rule 46, which is an enabling rule, enables the controlling authority to enter into an agreement when the circumstances require that special conditions should be prescribed for a particular post or posts consistent with the rules. Even then it directs that every agreement should include a provision that wherever the agreement is silent in respect of any matter, then the rules shall apply. We have similar provisions in the Bombay Civil Services Rules which are supplementary and are made under the powers delegated to the local Government under the Fundamental Rules.

It is clear, therefore, that if the proper authority issues an order appointing a person to a post and that person accepts it and joins his duties, then he is a person employed and is governed by all the rules, and contract of service must be regarded as having been made out.

In the present case, the order, which I have reproduced at the beginning of the judgment, clearly indicates that the order was communicated by the Deputy Secretary to Government by and in the name of the Governor of Bombay. Not only that, it was published in the Bombay Government Gazette and communicated to the employee and he worked in obedience to it. In my view, therefore, it becomes a contract of employment. He must, therefore, be held to be employed from 18 October, 1953 to 13 March, 1955.

The learned Government Pleader, however, contended that the resolution of the Government cannot be regarded as a contract. He has invited my attention to the decision in J. K. Gas Plant Manufacturing Company v. Emperor AIR 1947 F.C. 38 which has really no application where the question was one of construction of S. 40 of the Government of India Act. There reliance was placed on the construction placed on S. 30 of the Act in Secretary of State v. Bhagwandas Goverdhandas (1937) 40 Bom. L.R. 19. But Spence, C.J., of the Federal Court explained that in that case the initial correspondence which, it was contended, contained the contract was not made in the name of the Secretary of State and when Government passed a resolution accepting the transaction it became a one-sided move. The other side refused to accept the transaction when in pursuance to the resolution contract form was submitted. The decision in Secretary of State v. Bhagwandas Goverdhandas (1937) 40 Bom. L.R. 19 (vide supra) is against Mr. Kotwal since it holds that S. 30 of the Government of India Act, 1915, does not require a formal document in the nature of an indenture or a deed in the case of a contract. In the present case the order of appointment was addressed by the appropriate authority in the name of the Governor to the plaintiff, who accepted it and continued in office thereafter until he was relieved of the charge after 21 June, 1954.

It is undoubtedly true that where a contract is required to be in a particular form to be executed by a particular authority, then the requirements must necessarily be complied with. But then the first thing that must be established on behalf of the State is that the contract of service is required to be executed as contended for by the State. Since that has not been establish, it is impossible to hold that there was in fact no contract of service. In the cases cited by Mr. Kotwal, viz., Subodh Ranjan Vs. Major N.A. O''Callaghan and Another, and Lakshmi Narain Gupta Vs. A.N. Puri and Another, , attention of the learned Judge does not seem to have been invited to any of the rules referred to by me. It was assumed in these cases that appointment to the services must be by a contract executed as required by Art. 299 of the Constitution. Its ratio would produce the astounding result that neither the service rules nor Art. 311 of the Constitution will apply to about ninety-nine per cent of the civil servants. In view of what I have stated above, with respect, it is not possible to accept the view expressed by Mr. Justice Bose in those cases.

In Parshotam Lal Dhingra Vs. Union of India (UOI), , S. R. Das, C.J., says (p. 552) :

"... An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service."

In the same case it is held that the protection of the services rules and Art. 311 is available to such temporary servants.

Now, in the present case, if it is assumed that the services of the plaintiff were terminated before 13 March, 1955, by letters dated 8 May, 1954 and 21 June, 1954, the termination of his service is contrary to rule 49 of the Fundamental Rules, rule 33 of the Bombay Civil Services (Conduct, Discipline and Appeal) Rules and Art. 311 of the Constitution. He is in that case clearly entitled to claim damages.

It has been very seriously argued by Mr. Kotwal that since while making his appointment the procedure of referring the matter to the Public Service Commission was not followed, the appointment was invalid, relies on Art. 320 of the Constitution, Para. (3)(b). It has been held by the Supreme Court in State of U.P. Vs. Manbodhan Lal Srivastava, , that the provisions of Art. 320(3)(c) of the Constitution of India are not mandatory and that they do not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation does not afford him a cause of action in a Court of law. There is no reason why the ratio in that case should not apply to Para. (b), language of which is the same as that of Para. (c). I am not, therefore, prepared to hold that on this ground the order dated 14 October, 1953 was an invalid order and, therefore, inoperative.

It is also contended that the order having been made without reference to the Public Service Commission, the order of appointment is subject to the sanction being accorded by the Public Service Commission thereafter. In the first place, the order itself does not make its operation subject to the sanction of the Public Service Commission. It is impossible to read into the words of the order something which is not there as it would amount to rewriting of the order. This argument must, therefore, fail.

* * * 15. In the result, the decree passed by the Court below must be confirmed and the appeal must be dismissed with costs. The defendant to pay the amount to the plaintiff forthwith.