Surjit Singh vs Som Dutt and others

Bhopinder Singh Dhillon, J.—This judgment will dispose of L.P.A. No. 211 of 1971, filed by Surjit Singh appellant, and L.P.A. No 246 of 1971, filed by the State of Punjab against one and the same judgment of the learned Single Judge dated 3rd March 1971.

In order to appreciate the controversy between the parties brief facts may be given. Surjit Singh appellant in L.P.A. No. 211 of 1971 joined the public Relations Department of the Punjab Government as a Moharrir on 1st November 1944 and was confirmed as Assistant on 21st September 1959 Som Dutt writ-petitioner was confirmed as an Assistant in the same Department much later than Surjit Singh appellant and he was junior to the appellant by a few steps in seniority. On 1st April 1961, a temporary ex cadre post of Copy Writer was created in the grade of Rs. 250-10--350 in the Public Relations Department, Punjab. Surjit Singh appellant was appointed against this ex-cadre post of Copy Writter on 18th July, 1961 after he having been selected by the Punjab Public Service Commission. The post of Copy Writer was made permanent with effect from 1st September, 1966 vide notification Annexure ''B'' to the writ petition On 3rd September, 1963, Surjit Singh appellant wrote a letter to the Director, Public Relations, Punjab, that since he was the only incumbent working against the post of Copy Writer and the post having been made permanent therefore, he was likely to be confirmed. However, he pointed out that he should be confirmed against the post of Copy Writer without prejudice to his claim that might accrue to him by virtue of his being a substantive Assistant in the ministerial cadre. On 10th October, 1966, vide Annexure ''B'' to the writ petition, Surjit Singh appellant was confirmed by the Director of Public Relations Department against the post of Copy Writer and the condition imposed by Surjit Singh that this confirmation should not prejudice his claim that might accrue to him by virtue of his being a substantive Assistant, was accepted by the Government. The said order is in the following terms:--

Against the post made permanent vide Punjab Government memorandum No 8122-IPP-66, dated 1st September, 1966. This confirmation will be without prejudice to his interests and he will be entitled to all benefits as available to him by virtue of his position in the cadre of Assistants, so long as channel of promotion for the Copy Writer is not decided

On 2nd August, 1967, Surjit Singh wrote another letter to the Director that his confirmation as Copy Writer was standing in his way for further promotion in the ministerial cadre and, therefore, his case is being prejudiced. He wrote that if necessary, he might he deconfirmed from the post of Copy Writer. On 18th December, 1957, the State Government, exercising the powers vested in it under Rule 15 of the Punjab Public Relations Department (Class III Non Gazetted) Services Rules, 1958, relaxed the provisions of rule 9 (a) ( ) of the said rules and promoted Surjit Singh appellant to officiate as Superintendent in the scale of Rs. 350-20--450 with effect from 1st October, 1967. It was specifically mentioned in the order that he will have no claim for any promotion or other benefits on the basis of his confirmation as Copy Writer. Surjit Singh appellant was promoted as Superintendent with effect from 1st October, 1967 on the retirement of one Pritam Singh.

On 23rd May, 1968, one Jaswant Singh, who was working as Public Relation Officer, was reverted to his substantive post of Superintendent which necessitated the reversion of Surjit Singh from the post of Superintendent. The case of the appellant is that it was by the mistake of the Department that he was reverted on papers to the post of Copy Writer on 23rd May, 1968, but since Jaswant Singh proceeded on leave on the same day, that is, on 23rd May, 1968, Surjit Singh was promoted as Superintendent from the same date, that is, from 23rd May, 1968. Surjit Singh appellant continued to officiate as Superintendent in the leave vacancies of Tirath Singh and Jaswant Singh, when ultimately on 1st January, 1969, Tirath Singh, Superintendent, resumed his duties as Superintendent which necessitated the reversion of Surjit Singh. It may be pointed out that before he was reverted from the post of Superintendent, he wrote a letter to the Director, on 27th December, 1968 that in case he was to be reverted from the post of Superintendent, he should be reverted as Head Assistant and not as Copy Writer. It is worth mentioning that till 22nd November 1968 there was no channel of promotion from the post of Copy Writer. The Class III Rules of the Department referred to above, were amended in 1968 where a channel of promotion for the post of Copy Writer, which carried the grade of Rs. 250--10--350 was provided as follows:--

Assistant Public Relations Officer, Class III Non-Gazetted. Grade Rs. 150-10--200--10-300

Public Relations Officer, Class II Gazetted. Grade Rs. 250--25--750.

On 1st January, 1969, when Tirath Singh, who was on leave, joined as Superintendent, Surjit Singh appellant was reverted as Head Assistant which caused the reversion of Som Datt, writ-petitioner, to the post of Sales Manager, which post carried the equivalent pay and status of Assistant. On 16th December 1969, Jaswant Singh, Superintendent, was promoted as Compaign Officer and on the same date Surjit Singh was appointed as Superintendent in the vacancy caused by the promotion of Jaswant Singh. Som Dutt, writ-petitioner, was not promoted from the post of Sales Manager to the post of Head Assistant because the record of his service was bad. It was in these circumstances that Som Dutt respondent filed a writ petition challenging the appointment of Surjit Singh appellant as Head Assistant and consequently as Superintendent and made a prayer for issuance of a writ of quo warranto.

The State Government contented the writ petition and raised the pleas as follows:--

That Surjit Singh was confirmed against the post of Copy Writer on the condition which specifically protected his interest arising out of the permanent post of Assistant which he was holding substantively previous to his being confirmed against the post of Copy Writer.

In any case, it was pleaded that in view of the provisions of rule 15 of the Punjab Public Relations Department (Class III Non-Gazetted) Services Rules, 1958 the State Government had the power to relax the rigour of rule 9(a)(i) of the said Rules and the said power was exercised by the State Government. Therefore, the provisions of rule 9(a)(i) could not stand in the way of Surjit Singh and, therefore, he was rightly promoted to the post of Superintendent.

Surjit Singh appellant in his written statement pleaded that he specifically pointed out to the Director before he was confirmed against the post of Copy Writer that he should be confirmed against the said post without prejudice to his claim that might accrue to him by virtue of his being a substantive Assistant in the ministerial cadre. It was pointed out by him to the Director that he was a substantive Assistant ranking sufficiently senior in the seniority list of the Assistants due for promotion as Superintendent/Public Relations Officer. It is contended that this request was accepted by the Department and even subsequently, he continued all the time agitating with the Department that if need be, he might be deconfirmed from the post of Copy Writer. He also pleaded that in view of the relaxation of rule 9(a)(i) made by the State Government, his appointment to the post of Superintendent could not be held to be illegal

The learned Single Judge relying on a Full Bench decision of this Court reported in Tuli Ram Sharma v. Prithvi Singh ILR (1971) 1 P&H 353 came to the conclusion that in view of the operation of the provisions of rule 3.12 of the Punjab Civil Services Rules, Volume I, the lien of Surjit Singh appellant on the post of Assistant came to an end on 10th October, 1966 when confirmed against the permanent post of a Copy Writter. It was, therefore, held that his lien against the post of Assistant having come to an end in view of the provisions of rule 9(a)(i) of the Punjab Public Relations Department (Class III Non Gazetted) Services Rules, 1958, he was not qualified to be promoted as a Superintendent. Therefore, his appointment to the post of Superintendent was illegal.

It was held that the State Government had no power vested in it under rule 15 of the Punjab Public Relations Department (Class III Non-Gazetted) Services Rules, 19 8 for relaxing the provisions of rule 9. The learned Single Judge relied on a Single Bench decision of this Court reported in Lehna Singh, Head Assistant, Public Relations Punjab v. Punjab State 1970 SLR 844. The correctness of the decision of the learned Single Judge in that case was also challenged before Narula J. in this case and it was observed by the learned Judge as follows:--

Faced with the above mentioned judgment of Tuli J. in Lehna Singh''s case, Mr. Balwant Singh Gupta was left with no alternative except to claim that Lehna Singh''s case has not been correctly decided and to ask me to refer this case, if necessary, to a Division Bench for reconsidering the view taken by Tuli J. particularly because Letters Patent Appeal against that judgment is stated to have already been filed and admitted. Had the respondent not been entitled to prefer an appeal against my judgment as a matter of right, I might have adopted that course because I do feel that some of the observations of Tuli J. in Lehna Singh�s case may indeed be too widely stated. I am, however, bound by that judgment and following the same I hold that the purported relaxation of rule 9(a)(i) in exercise of the powers conferred on the Government under rule 15 of the 1958 Rules, was not valid and was, therefore, of no effect.

It may be pointed out here that L.P.A. No. 648 of 1970 Punjab State and another v. Lehna Singh etc., was tiled against the judgment of Tuli J. in Lehna Singh case (supra), but the same was got dismissed as having become infructuous.

As regards the contention that Surjit Singh was deconfirmed from the post of Copy Writer by order dated 18th December, 1967, when the State Government ordered that Surjit Singh would have no right for any promotion or other benefits on the basis of his confirmation as Copy Writer, it was observed by the learned Judge that in vie of the operations of the provisions of rule 3.12 of the Punjab Civil Services Rules, the lien of Surjit Singh against the post of Assistant had ceased earlier and the same could not be revived by the order dated 18th December, 1967. The learned Judge after recording the above mentioned findings, accepted the writ petition and quashed the appointment of Surjit Singh to the post of Head Assistant and Superintendent and issued a direction that in consequence of the judgment, the State Government while filling in the post which may fall vacant on account of reversion of the appellant, shall consider the writ-petitioner for such post in accordance with the relevant rules.

We have heard Mr. B.S. Gupta, Advocate, for the appellant, Surjit Singh; Mr. Mohinderjit Singh Sethi, Advocate for the State and Mr. J.L. Gupta, Advocate for respondent No. 1, at considerable length. The learned counsel for Surjit Singh appellant raised the following points during the course of his arguments:--

(1) That the case of his client is not covered by the Full Bench judgment of this Court in Tuhi Ram Sharma''s case (supra) inasmuch as in that case no order of suspension of lien had been passed whereas in the present case, the State Government specifically mentioned in the confirmation order that the rights of Surjit Singh against the post of Assistant will not be affected. The learned counsel contends that this in fact amounts to suspending the lien of Surjit Singh against the post of Assistant. Therefore, the learned counsel contends that the provisions of rule 3.12 of the Punjab Civil Services Rules would not come into operation in the present case.

(2) That in view of the provisions of rule 3.14(a) (2) of the Punjab Civil Services Rules, the Government WAS duty bound to suspend the lien of Surjit Singh because he was going to be appointed substantively to a permanent post of Copy Writer outside the cadre of permanent post of Assistant which he was holding substantively, and, therefore, even if no specific order was passed by the State Government, since the case of his client is covered under rule 3.14(a) (2) of the Punjab Civil Services Rules, therefore, rule 3 12 ibid would not come into operation.

(3) That in any case, even if it is held that the Full Bench decision in Tuhi Ram Sharma''s case (supra), applies to the facts of the present case, the learned counsel contended that the Full Bench decision is not laying down the correct law and the interpretation of the rules 3.11, 3.12, 3.13 and 3.14 of the Punjab Civil Services Rules as given by the Full Bench is not correct. The learned counsel raised a number of arguments with a view to convince us that the decision of the Full Bench in Tuhi Ram Sharma''s case (supra) was not correctly made, and, therefore, the matter may be referred to a larger Bench

(4) that the Single Bench decision in Lehna Singh''s case (supra) is not the correct decision on the interpretation of rule 15 and rule 9(h) (i) of the Punjab Public Relations Department Gazetted) Services Rules, 1958, and, therefore, the State Government had the power to relax the operation of rule 9(a) (i) of the Punjab Relations Department (Class III Non-Gazetted) Services Rules, 1958, and as such the appointment of his client to the post of Superintendent was validly made.

(5) It was contended that if the operation of the confirmation order dated 10th October, 1966, which protected the rights of Surjit Singh appellant against the post of Assistant was illegal, the whole order should be thrown out and in that case, there will be no confirmation order confirming Surjit Singh appellant against the post of Copy Writer and, therefore, operation of the provisions of rule 3.12 of the Punjab Civil Services Rules, would cot come in. It was contended that the part of the order was favourable to the employee cannot be held to be illegal; whereas the other part of the same order detrimental to the interest of the employee, should be held to be legal. It is contended that Surjit Singh appellant never gave his consent to be confirmed against the post of Copy Writer without his rights having been protected against the post of (he Assistant which he was holding substantively which post had the channel of promotion in view of rule 9 (a)(i) of the Punjab Public Relations Department (Class III Non-Gazetted) Service Rules, 1958.

Mr. Mohinderjit Singh Sethi, the learned counsel for the State of Punjab, contended that in view of the provisions of rule 1 3, 11 and 1.6 of the Punjab Civil Services Rules, the provisions of rule 3.11 and 3.12 of the Punjab Civil Services Rules would not apply to the present case as there was an agreement between the State Government and Surjit Singh appellant that the lights of Surjit Singh appellant against the permanent post of Assistant on which post Surjit Singh appellant was permanently appointed, would not be affected even if he is confirmed against the post of Copy Writer. The learned counsel contends that since it was a term agreed between the employer and the employee, to that extent, in view of the provisions of rules 1.3, 1.4 and 1.6 of the Punjab Civil Services Rules, the provisions of rule 3.12 ibid will not operate.

I propose to deal with ground No. 4 referred to above first.

Punjab Public Relations Departments (Class III Non-Gazetted) Services Rules, were framed in exercise of the powers conferred on the Governor under proviso to Article 309 of the Constitution of India and other powers enabling him in this behalf, on 2nd May, 1958. Rules are divided into four parts. Part I contains Rules 1 and 2; part II contains rules 3 to 5; part III contains rules 6 to 9 and Part IV contains rules 10 to 15.

In rule 2 (f) of the said Rules, service is defined as follows:--

''Service'' means the Punjab Public Relations Department (Class III-Non Gazetted) service.

Rule 3 of the said Rules is as follows:--

Number and character of posts--The Service shall comprise the posts shown in Appendix ''A'' to these rules; Provided that nothing in this rule shall affect the inherent right of Government to make additions to or reductions in the number of such posts, either permanently or temporarily.

Appendix ''A'' to these rules contains the categories and numbers of posts in the Department, but the post of Copy Writer is not included in Appendix ''A''.

Rule 4 deals with the nationality of the candidates and rule 5 deals with the age of the candidates and is as follows:--

5 (1) Age of candidates--Except in the case of a person already in Government service, no one shall be appointed to the Service if he is below 18 or more than 25 years of age (30 years in the case of Scheduled Castes, Scheduled Trbes and other Backward Classes) on the date of appointment: Provided that the appointing authority may in special circumstances, to be recorded in writing, appoint a person exceeding 25 years of age.

(2) The appointing authority shall verify the date of birth of every person appointed to the Service and shall note in his service book the mode of verification adopted in each case. Only the following documents shall be accepted for purposes of verification:--

(i) certified extracts from birth registers provided the name of the child is specifically mentioned therein ;

(ii) certified copies of entries made in School and College registers ;

(iii) certified copies of extracts from Gazette notifications containing the results of examinations; if the age or date of birth is given therein, and

(iv) the first University Certificate or a certified copy of the notification publishing the result of the first University Examination or certificate of Board of Examination.

(3) In the case of a Government servant, the date of birth in his service book shall be treated as final.

According to rule 6, the appointing authority is the Director of Public Relations Department. Rule 7 deals with conditions of appointment, which is as follows:--

Conditions for appointment.

(1) Except a person already in Government service, no person shall be appointed to the service unless he produces:--

(a) a certificate of good character from the principal, academic officer of his University, College or School last attended, if any, and similar certificates from two responsible persons who are not related to him and who are well acquainted with him in private life and are not connected with his university, college or School or Training Institution, if any.

(b) The Medical Certificate required by rule 3.1 of the Punjab Civil Services Rules, Volume I, Part I.

(2) No person who has more than one wife living or is married to a person who already has a wife living, shall be eligible for appointment to any post in the Service unless the Government after being satisfied that there are special grounds for doing so, exempt such person from the operation of this provision.

Rule 8 provides necessary qualifications for different posts covered by these rules and as regards the post of Superintendent, the following minimum educational qualifications have been provided :

Graduate of a recognised University, with at least 5 years administrative experience in a Government office in a State or Union.

Rule 9 provides that the recruitment to the Services shall be made in the following manner:--

Recruitment to the Services shall be made--

(a) In the case of Superintendent--

(i) by selection from among Head Assistants, Article Writers, Assistants or Sales Manager, provided they have five years'' experience on their respective posts ; or

(ii) by transfer or deputation of a person already in the service of the Government of a State or of the Union; or

(iii) by direct appointment.

* * *

Part IV of the rules deals with the conditions of the service.

Rule 10(i) makes the provision regarding the period of probation of members of service. Rule 11 deals with seniorty, whereas rule 12 deals with leave, pension and other cognate matters Rule 13 deals with pay of the members of the service and Rule 14 deals with authority empowered to impose penalities. Rules 15 under which the powers of relaxation to rules are given, is as under:--

Powers to relax rules.--Where the Government is satisfied that the operation of any of these rubs causes undue hardship in any particular case it may by order dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner.

I have reproduced all the important rules with a view to examine the true purport of rule 15. In my opinion the interpretation of rule 15, as given by Tuli J in Lehna Singhs case (supra), is not warranted from the plain reading of rule 15 and keeping in view the scheme of the rules. In the case before Tuli J. the provisions of rule 9 (h) (i) of the Public Relations Department (Gazetted) Service Rules, 1958, and provisions of rule 15 of the said rules came for interpretation. I may point out that rule 9(h)(i) of the Punjab Public Relations Department (Gazetted) Service Rules, 1958, provides the mode of appointment to the post of Public Relations Officers, District Public Relations Officer, Editors and Radio and Press Liaison Officers and rule 15 of (he said rules is paramateria the same as rule 15 in the present case. While considering the case of Amar Kant respondent in that case, Tuli J. came to the conclusion that Amar Kant was not entitled to be appointed to the post of Public Relations Officer as he was not qualified in view of the provisions of rule (9)(h)(i) of the Gazetted Rules referred to above. The plea that he was appointed in relation of rule 9(h)(i) was negatived. After reproducing Rule 15, the learned Judge held as follows:--

As I read this rule, it can be applied only to the members of the service who are governed by these rules and in whose case the operation of any rule causes undue hardship but this power of relaxation cannot be exercised in favour of a new entrant to the service as it cannot be said that any rule causes undue hardship to him. Secondly, no order has been produced before me to prove that the Government passed any order to the effect that it was satisfied that the operation of rule 9(h)(i) caused undue hardship to Amar Kant and, it was, therefore, necessary to relax the requirements of that rule and to what extent and subject to what conditions. The appointment and promotion of Amar Kant to the post of Public Relations Officer, to begin with, was not in accordance with the rule and could not be regularised by relaxing one of the rules relating to the recruitment.

I am in respectful disagreement with the view taken by Tuli J. The plain reading of rule 15 would show that the power under this rule is not only confined to be exercised in favour of a person already in service as the rule provides that where the Government is satisfied that the operation of any of these rules causes undue hardship in any particular case it may by an order dispense with or relax the requirements of that rule to such extent and subject to such conditions as deemed necessary to deal with the case in a just and equitable manner. If the intention of the rule making authority was to limit the operation of this rule only to the members of the service, the language of the rule would have been different. Instead of using the words "in any particular case" in the rule the words would have been "in the case of members of the service '', but the language of the rule is not such. Rule 9 provides for a number of posts in the Service to be filled in by direct recruitment. If the interpretation as given by Tuli J. is accepted to be correct, it would mean that in case of direct recruitment, even though the Government may be satisfied that the case was of undue hardship and in order to deal with the same in just and equitable manner, relaxation or dispensing with of a particular rule debaring a new entrant from entering into service was needed, the Government would be powerless. For instance, sub-rule (2) or rule 5 provides that the appointing authority shall verify the date of birth of the person appointed to the service and shall note in the service book the mode of verification adopted in each case. The only documents, which have to be accepted for the purpose of verification, mentioned in this rule are as follows:--

(i) Certified extracts from birth registers provided the name of the child is specifically mentioned therein ;

(ii) certified copies of entries made in School and College registers ;

(iii) certified copies of extracts from Gazette notifications containing the results of examinations, if the age or date of birth is given therein, and

(iv) the first University Certificate or a certified copy of the notification publishing the result of the first University Examination or certificate of Board of Examination.

If these four types of documents are not available in my view, the Government can by an order dispense with or relax the requirement of that rule provided the other ingredients of rule 15 are satisfied. Since the rules also deal with the direct recruits, therefore, the operation of any rule concerning the direct recruits can result into undue hardship. Therefore, it is not correct to hold that no rule can be said to cause hardship in the case of new entrant in the Service.

If in a given case, none of these documents is available, nor can it be made available and the State Government is satisfied that it is a case of undue hardship and in order to decide the same in a just and equitable manner the operation of sub-rule (2) of Rule 5 be dispensed with or relaxed, in that case, if the interpretation as given by Tuli J. is correct, this cannot be done. If this restricted interpretation is given, the very purpose of rule 15 will be frustrated. From the plain language of rule 15 it is clear that this rule can be put into operation if the operation of any of the rules causes undue hardship in any particular case. For instance, operation of any rue can also cause hardship to a direct recruit, who is yet to enter into the service, and if the Government is satisfied to that effect, it has certainly power to relax the operation of such rule which stands in the way of the direct recuit to enter the Service, in order to deal with the case in a just and equitable manner. Therefore, if the following ingredients are satisfied rule 15 can be brought into play irrespective of the fact whether the case is of a member of the Service or of a new entrant:--

There must be a particular case.

In that case, the operation of any of these rules must result into undue hardship.

The Government must be satisfied about the hardship having been caused by the operation of that rule in that case

The power must be exercised in order to deal With the case in a just and equitable manner.

No doubt in rule 5 (1), a power has been given to the appointing authority under special circumstances, for the reasons to be recorded in writing, to relax the rules regarding upper age limit, but that may not warrant an inference that the rule making power never wanted to give an over-riding power to the State Government under rule 15. The power in proviso to rule 5 (i) is given to the appointing authority who is the Director and not to the State Government. This power has been given to an authority subordinate to the State Government. Therefore, the jurisdiction under rule 5 (i) is to be exercised by a separate and subordinate authority in different circumstances. In a given case, where the requirements of rule 15 are satisfied, the State Government may relax or suspend the operation of rule 5 along with the proviso to it. Similarly, the power given to the State Government to exempt an eligible person for being recruited in the Government service even though he has got more than one living and married wife under rule 7 (2) is different jurisdiction and the said jurisdiction can only be exercised if the Government is satisfied that there are special grounds for doing so. If the power under this rule is to be exercised, no other ingredient than those in rule 15, is to be satisfied. The jurisdiction given under rule 15 is clearly a separate jurisdiction, which can only be exercised if in any particular case, the Government is satisfied that the operation of any particular rule causes under hardship and it is necessary to relax the rule which causes undue hardship in order to deal with the case in a just and equitable manner. It is to be kept in mind that it is not in each and every case, where the State Government so likes that it can exercise the power under rule 15 so as to negative the provisions of rules themselves, but it is only in exceptional cases of undue hardship and with a view to deal with the case in a just and equitable manner that such power is exercised. The argument that if the operation of a rule can be relaxed by the State Government in case of persons who are not members of the Service, it will result in making ineligible persons to be eligible, appears to be attractive at first instance, but when this is examined in its proper perspective, it is to be found that this argument has no force. It is not in each and every case that such a power can be exercised. If it is shown in a given case that the power under rule 15 has been exercised with a view to make an ineligible person as eligible and the ingredients of rule 15 are not satisfied, that order will be quashed by this Court. Even if for argument''s sake it be admitted, for a while, that the power under rule 15 can only be exercised in the case of persons who are members of the service, even then the same criticism will stand because a member of the service who is ineligible for promotion according to rule 9 will be made eligible for promotion by relaxing the rigour of rule 9. The power under rule 15 is inherently meant to remove a particular rule, the operation of which causes undue hardship, from the statute book for the time being and if the rule is not ultra vires, this type of argument is of no avail to the counsel for the writ petition. The rules framed under the proviso to Article 309 of the Constitution of India have to be framed keeping in view the exignecies of the service and rule which provides for cases of undue hardship be dealt with in a just and equitable manner, has to be given its full meaning. Therefore, taking into consideration the plain language of rule 15, it is difficult for me to subscribe to the view that the operation of this rule is confined only to the members of the service.

Moreover, rule 15 is a condition of service and as good a condition as any other condition of service and no member of the service can complain if the power under this rule is exercised by the State Government in proper cases. All the conditions of service including rule 9 (a) (i) are subject to rule 15 and, therefore, it is idle to contend that while exercising the power under rule 15 of the State Government will be making an ineligible person as eligible. Every member of the service is governed by these rules and rule 15 is as good a rule as any other rule which provides conditions of service. No member of the Service can be heard to make out a grievance for the exercise of power by the State Government if the ingredients of rule 15 are satisfied.

Mr. Jawahar Lal Gupta, the learned counsel for respondent No. 1, then contended that rule 15 is ultra vires as it gives unbridled and unguided powers to the State Government to relax the operation of any rule. This contention again, in ray opinion, is without any merit. The rule making authority in its wisdom has given clear guide-lines for exercising the power under this rule. The power under this rule can only be invoked if the State Government is satisfied that the operation of any of the rules causes undue hardship in a particular case. A guide line having been laid down in the rule itself, it is difficult to hold that unguided or unbridled powers have been given to the State Government It is a different matter that in a particular case the said power is misused by the State Government, but that argument would not entitle the Court to hold that rule 15 is ultra vires. If in a particular case, power given to the State Government is misused, it is open to the aggrieved party to approach the Court and the Court will be duty bound to strike down the said order. Moreover, this power has been given to the highest authority in the State, that is, the State Government and it cannot be presumed that the State Government, will misuse this power.

Their Lordships of the Supreme Court in The Municipal Corporation of Delhi Vs. Birla Cotton, Spinning and Weaving Mills, Delhi and Another, , held as follows:--

The principal is well established that the legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act. Where the legislative policy is enunciated with sufficient clearness or a standard is laid down the Courts should not interfere. What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of the particular Act with which the Court has to deal including its preamble Further the nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation. What form the guidance should take is again a matter which cannot be stated in general terms. It will depend upon the circumstance of each statute under consideration. In some cases guidance in broad general terms may be enough.

The said observations can usefully be made applicable to the present case in order to see whether sufficient guide-lines have been provided in the rules for the guidance of the Government to exercise power under rule 15. In the nature of things, nothing more than what has been laid down in the rules could be laid down by the rule making authority for the guidance of the State Government. The rule provides for dealing the case of an undue hardship in a just and equitable manner in order to do justice to a particular person. In the nature of things, the rule essentially applies to a person who is made to suffer undue hardship because of the operation of any of the rules. In such a situation, no other guide-line could be given as the cases which may fall for application of rule 15 are bound to be of unforeseen circumstances which may occur in a number of ways.

Similar matter came up for consideration before Tuli J. in Hardyal Singh, Assistant Excise and Taxation Officer, Ludhiana v. State of Punjab 1970 SLR P&h. 903, where the vires of rule 19 of the Punjab Excise and Taxation Department (State Service Class III-A) Rules. 1956 came up for consideration. This rule as originally framed in 1956 was as follows:--

Dispensation and relaxation in hard cases : Where the Governor is satisfied that the oparation of any of these rules will cause undue hardship in any particular case, he may by order dispense with or relax, to such extent and subject to such conditions as he may consider necessary for dealing with the case in a just and equitable manner.

The said rule was then amended on February 12, 1965 and the following rule was substituted:--

Where the Government is of the opinion that it is necessary or expedient so to do, it may by order for reasons to be recorded in writing, relax any of the provisions of these rules with respect of any class or category of persons.

The vires of this amended rule were challenged on the similar grounds and Tuli J. came to the conclusion that the power of relaxation given under rule 19 to the Government was not violative of Article 14 of the Constitution of India.

In this view of the matter, there is no merit in the contention of Mr. Jawahar Lal Gupta, the learned counsel for respondent No. 1, that this rule is ultra vires :

The next contention of Mr. Jawahar Lal Gupta, the learned counsel for respondent No. 1, that even if the Government had the power of relaxing the rule in case of Surjit Singh, appellant, the respondent No. 1, had the right to be considered for promotion to the post of Superintendent, is again without any merit. The writ-petitioner was admittedly quite a few steps below the appellant, Surjit Singh, in seniority of confirmed Assistants even at the time when Surjit Singh was confirmed as Copy Writer. The provisions of rule 9 (a)(i) show that it is not the Assistants alone who are eligible for promotion but a number of other categories of persons are also eligible for promotion to the posts of Superintendents. The file indicates that the Government had applied its mind to the provisions of rule 9(a)(i) and out of the qualified category of persons the Government, after applying its mind, came to the conclusion that keeping in view the seniority-cum merit there was a real contest between Sher Singh, Article Writer and Surjit Singh, appellant, for promotion to the post of Superintendent. After considering the merits of the claim of both these incumbents, the Government came to the conclusion that in view of his experience and number of other reasons mentioned in the file, Surjit Singh was the proper person to be promoted. Som Dutt, the writ-petitioner, was, at that stage, far away in order of seniority to be considered for the promotion. The promotion to the post of Superintendent was to be made by selection keeping in view the merit-cum-seniority and only the claims of the persons who were sufficiently high in seniority in different categories of qualified persons were to be considered and out of them a Superintendent was to be appointed. It is an admitted fact that in the order of seniority Surjit Singh was the senior-most Assistant, Lehna Singh came after him and then was the writ petitioner, Som Dutt. Therefore, this contention of the learned counsel is again without any merit and is to be repelled.

Mr. J.L. Gupta, then contended that the hen of Surjit Singh on the post of Assistant had come to an end because of the operation of rule 3.12 of the Punjab Civil Services Rules, Volume I (Part I). It is, therefore, contended that the power under rule 15 could not be exercised in his case because operation of a rule cannot be said to have caused any undue hardship. This contention again is without any merit. The power under rule 15 can only be exercised where the operation of any of the rules causes undue hardship. If the contention that the hardship caused by a rule cannot be said to be an undue hardship, is accepted, it would mean that in no case the rule can be relaxed. The facts of the present ease have already been stated in detail and it is crystal clear that Surjit Singh appellant, who was quite high in the seniority of Assistants, was subsequently appointed against a temporary post of Copy Writer. He accepted the temporary appointment of Copy Writer after he had been selected by the Public Service Commission. When the post of Copy Writer became permanent, he apprehended that he may be confirmed against this post and thereby his rights and privileges which be enjoyed as a permanent Assistant, would be adversely affected and, therefore, he wrote to the Director that he may not suffer on account of confirmation against the post of Copy Writer. The Department accepted his plea and specifically provided that his rights and privileges as against the post of Assistant will not be affected with his confirmation against the post of Copy Writer. If the provisions of rule 3.12 came into play and his lien against the post of Assistant came to an end, on his being confirmed against the permanent post of Copy Writer, it was not due to his fault, as has been narrated above. He continued protesting to the Department before he was confirmed and as well after the confirmation order was passed, a number of times, and if the Department did not correctly pass orders and realised the legal position, the appellant is not to be made to suffer. It was under these circumstances, that the State Government at that stage realised that there was an employee who had a permanent lien on the post of Assistant and was sufficiently high in the seniority and was a member of the service and was thrown out of the service by an action of the Government, and, therefore, it was a case of undue hardship where the provision of rule 9(a)(i) had to be relaxed. It cannot be disputed that if Surjit Singh had not been confirmed on the post of Copy Writer and the operation of rule 3.12 would not have come in his way, he was sufficiently senior to the writ-petitioner and was entitled to be promoted as Superintendent on the basis of merit-cum-seniority.

The matter may be viewed from another view point. A