The State of Himachal Pradesh vs Shri Badri Parshad Pandey

H.C.P. Tripathi, J.—This appeal is directed against the order of a learned single Judge passed on a petition under Articles 226 and 227 of the Constitution.

The facts which arc relevant to the questions in controversy are these--

In October, 1961 the Panchayat Department of Himachal Pradesh Administration issued the following circular:

No. 15-17/60-Panch. HIMACHAL PRADESH ADMINISTRATION Panchayats Department

To

All Heads of Departments, H.P.

The Chief Executive Officer, H.P. Territorial Council, Simla-4.

All the Deputy Commissioners in H.P. Simla-4, the October, 1961/the Karitika, 1183

Subject.--Recruitment of Staff in Panchayat Department.

MEMO.

The following posts are proposed to be filled up in this department immediately. It is, therefore, requested that the same be brought to the notice of the staff working under your control. The applications should reach the undersigned on or before 15th November, 1961. No application will be entertained after that date:

S. Name of post Scale Qualifications No. 1. Editor-cwm-Pan- 250-400 Himachali. Gradua- chayat Informa tion in Hindi having tion Officer. good and sufficient knowledge of Hindi. Practical experience of journalism. Must be a man of literary taste. Good knowledge regarding techniques of publicity. 2. Educational Pan 170-350 Himachali. Law chayat Officers. graduate will be an essential minimum qualification. Must be having good and sufficient knowledge of Hindi.

Sd/-(R.S. RAI), Deputy Director of Panchayats, Himachal Pradesh.

In response to this circular Respondent submitted an application for the post of Educational Panchayat Officer which reads as follows:

To

The Director of Panchayats, Himachal Pradesh,

Simla-4.

Through Proper Channel

Subject.--Recruitment of Staff in Panchayat Department.

Sir,

In response to your Memorandum No, 15-17/60-Panch, dated the 2nd November, 1961, addressed to all Heads of Departments in Himachal Pradesh, I beg to apply as one of the candidates for the post of Educational Panchayat Officer under your kind control.

As regards my qualifications and experience for the post applied for, I beg to state as under:

I have passed M.A. in Hindi from the Punjab University in the year 1957.

I have a wide and up-to-date knowledge of day to day happenings of National and International affairs. I have very sound knowledge of the Five Year Plans of the country and have got taste in writing books and pamphlets on Panchayat Raj etc.

I have got special aptitude in this line and hence applying for the above stated post.

At present I am employed in the Secretariat of the Lieutenant Governor.

If given a chance, I am confident that I would be able to do full justice to this job applied for and be able to satisfy the superiors with my work and conduct.

Yours faithfully, Sd/- (B.P. PANDEY), Lieut. Governor''s Secretariat, Raj Niwas, Simla-4.

It is significant that the Respondent did not conceal that he was not a law graduate which was "the essential minimum qualification" required under the circular for the post of Educational Panchayat Officer. It appears that the Respondent was called for an interview and thereafter he was appointed to the temporary post of an Educational Panchayat Officer. The appointment letter issued to him is reproduced below:

15-4/62-Panch. HIMACHAL PRADESH ADMINISTRATION Panchayats Department

To

Shri B.P. Pandey, Lt. Governor''s Secretariat, Raj Niwas, Simla.

Simla-4, dated the 13th Feb., 1962

Subject.--Appointment of Educational Panchayat Officer in the Panchayat Department.

With reference to his application and subsequent interview held on 2nd February, 1962, Shri B.P. Pandey is offered a temporary post of Educational Panchayat Officer on an initial pay of Rs. 170 p.m. plus usual allowances at Himachal Pradesh Administration rates in the scale of Rs. 170-10-250/10-350 on the following-conditions:

(i) That the post is purely temporary and his appointment is liable to terminate by giving one month''s notice from the either side.

(ii) He should produce certificate of good character from Magistrate 1st Class or a Gazetted Officer known to him for at least 3 years.

(iii) He should furnish educational qualifications certificate.

(iv) He should produce a medical certificate of fitness from the Civil Surgeon concerned which will be issued free to him.

(v) He should furnish declaration certificate that he has only one living wife and if unmarried he shall not have more than one wife living at any time.

(vi) He is liable to be posted anywhere in H.P.

(vii) He should produce a certificate to the effect that he is a bonafide Himachali.

(viii) No travelling allowance is admissible for joining the post and his appointment under H.P. Admn. shall take place from the date he reports for duty at the headquarter concerned.

If the above terms and conditions are acceptable to Shri B.P. Pandey, he should report to the State headquarter at Simla-4, before 26th February, 1962, failing which the appointment letter will be treated as cancelled.

Sd/- Director of Panchayats, H.P.

On the receipt of the appointment letter the Respondent produced the various certificates mentioned therein and joined as Educational Panchayat Officer on 15th February, 1962.JJpto this date there were no statutory rules governing the conditions of service of the Himachal Pradesh Panchayat Department Class III Service. However, soon afterwards on the 13th of August, 1962 the Himachal Pradesh Administration, Panchayat Department, issued a notification detailing the rules made by the Lieutenant Governor in exercise of the power delegated by the President under proviso to Article 309 of the Constitution in regard to "the method of recruitment to the Himachal Pradesh Panchayat Department Class III Service; the qualifications necessary for appointment to such service and posts; and the conditions of service of persons appointed to such service and posts for purposes of probation, confirmation, seniority and promotion", abstract from which is annexed to the petition as Annexure ''F''. These rules provide that the appointment to the post of Educational Panchayat Officer shall be made by promotion from amongst the Panchayat Inspectors having at least four years experience. Under these rules holding of a law degree was not prescribed as an essential qualification for any of the posts.

On 6th April, 1967 the Director of Panchayats, Himachal Pradesh, Simla, issued a notice to the Respondent indicating therein that his services were no longer required and he was to be reverted to his parent department, i.e., Lieutenant Governor''s Secretariat after the expiry of one month''s notice period. Respondent made representation to the authorities against his reversion but the same was rejected.

By his petition under Article 226 of the Constitution, Respondent challenged the validity of the order of reversion passed on 6th April, 1967 as illegal and void inter alia on the grounds that it violates the provisions of Articles 14, 16 and 311 of the Constitution and that the Himachal Pradesh Administration was barred by the rules of estoppel and principles of natural justice from ordering the reversion of the Respondent to his parent post. It is alleged that the Respondent had not made any misrepresentation in his application that the department had appointed him with open eyes after finding him suitable for the post, that the Respondent had worked for a period of more than five years and as such the department was estopped from taking the position that as he did not possess a law degree which was the essential qualification for appointment to the post he should be reverted to his parent department. It is alleged further that under the rules formulated under Article 309 of the Constitution the Respondent who had worked against a permanent post from 15th December, 1962 till 6th April, 1967 must be deemed to have been a permanent employee and as such could not be reverted to a lower post without complying with the provisions of Article 311 of the Constitution.

In the return by the State it is averred that the Respondent''s appointment was irregular as he did not possess the requisite qualification prescribed for the post, that he was a temporary employee and as such it was open to the State to terminate his service on one month''s notice, that the rule of estoppel docs not come into play in favour of the Respondent who was holding the post in a purely temporary capacity during the pleasure of the Governor as provided under Article 309 of the Constitution and the impugned order does not suffer from any infirmity. In the return it is, however, admitted that "the Petitioner worked against the permanent post of Educational Panchayat Officer from 15th December, 1962 till his reversion in temporary capacity."

Learned single Judge allowed the petition and quashed the impugned order inter alia on the findings that "a case of estoppel is decidedly made out in favour of the Petitioner as against the State", the initial temporary appointment of the Respondent had later on matured into a permanent appointment, and the impugned order violates the provisions of Articles 16 and 311 of the Constitution.

Learned Counsel for the Appellant has argued that the Respondent has all along been a temporary hand, that his services were terminated on one month''s notice in accordance with the terms of his appointment, that the impugned notice of termination does not leave any stain on his character and as such neither the provisions of Article 16 nor of Article 311 have been violated. Learned Counsel contends that it is the case of a temporary employee who was holding office during the pleasure of the Governor of the State and no rule of estoppel can operate against the Governor. Reliance is placed by the learned Counsel on Article 310, Clause (1) of the Constitution.

On the other hand, Shri Sushil Malhotra, learned Counsel for the Respondent has vehemently argued that the facts and circumstances of the case attract the rule of estoppel against the State and the findings arrived at by the learned single Judge that the impugned order infringed the provisions of Articles 16 and 311 of the Constitution arc correct for the reasons given by him.

Having given our anxious consideration to the respective contentions of the parties as detailed in their pleadings and adumbrated by the learned Counsel in their arguments, we are of opinion, that neither the rule of estoppel nor the provisions of Article 16 are relevant for the decision of this case.

The central question which requires consideration is whether on the date of the impugned order the Respondent was holding a temporary post or he was serving in a permanent capacity. If the Respondent was a temporary hand it was certainly open to the Appellant to terminate his service on one month''s notice in accordance with the terms of his appointment by an innocuous order leaving no stain on his character, and no rule of estoppel can enure to his benefit for preventing the employer from dispensing with his service. 1972 S.L.R. 537 Union of India and Anr. v. Gajendra Singh etc. and Ram Gopal Chaturvedi Vs. State of Madhya Pradesh, The provisions of Article 16 will not be attracted in such a case as it is always open to the employer to discharge the service of a temporary employee at his discretion and to retain some others on similar posts without infringing the constitutional rule of equality of opportunity in matters of public employment.

If the Respondent was, however, holding the post in a permanent capacity the impugned order which would then amount to his removal from service without giving him a reasonable opportunity of being heard, will be hit by Article 311 of the Constitution and again the question of estoppel will be irrelevant for deciding the validity or otherwise of the impugned order.

Considerable arguments were advanced at the Bar canvassing for and against the rule of estoppel being applicable to the facts of this case. The learned single Judge has devoted a major part of his judgment in arriving at his conclusion "that the foremost contention of the Petitioner was founded on the plea of estoppel" and that it was available to him against the State.

Learned Advocate-General has argued that the case of the Union of India and Ors. v. Anglo Afghan Agencies etc. AIR 1968 SC 718 which has been relied upon by the learned single Judge for holding the rule of estoppel available against the State was not a case dealing with service matter and as such it cannot be held to be an authority for the proposition that the rule of estoppel can be available to a member of the Stale Civil Service who holds the office during the pleasure of the Governor as against his employer. Without expressing any final opinion on this question as it is not relevant in this ease, we think it pertinent to observe that as early as 1949 Lord Denning dealing with a case of an Army officer in Robertson v. Minister of Pensions (1949 1 KB 227) observed:

The Crown cannot escape by saying that estoppels do not bind the Crown for that doctrine has long been exploded.

The Respondent joined in a temporary capacity the post of Educational Panchayat Officer under the State on 15th February, 1962. But he worked against a permanent post from the 15th December, 1962 till 6th April, 1967 when the impugned order was passed. That he worked against a permanent post is evident from the fact that he was shown in the seniority list of the Educational Panchayat Officers and D.A.Os. prepared by the department. In para 13(c) of their return the Appellants have admitted that "the Petitioner worked against the permanent post of Educational Panchayat Officer from 15th December, 1962 till his reversion in temporary capacity". In other words, according to the Appellants, the Respondent was holding a permanent post in a temporary capacity.

As has been stated earlier at the time of the recruitment of the Petitioner, there were no rules governing the conditions of service of the Himachal Pradesh Panchayat Department. However, on 13th August, 1962 the rules known as Himachal Pradesh Panchayat Department Class III Service (Recruitment and Promotion and Conditions of Service) Rules, 1962, came into force. Rule 2(d), (e) and (h) read as follows:

(d) ''The Service'' means the Himachal Pradesh Panchayat Department Class III Service.

(e) ''Direct appointment'' means an appointment made otherwise than by promotion from amongst the members of the service or by transfer of an official already in the service of the Administration or of the Union.

(h) ''Member'' means a member of the Himachal Pradesh Panchayat Department Class III Service.

These rules do not provide law degree as an essential qualification for recruitment to the service. Part-II of the rules deals with condition of service. Rule 9 which falls in this part reads as follows:

Members of the service, who are appointed against permanent vacancies, shall on appointment to any post in the service, remain on probation for a period of two years in the case of direct recruitment and on trial for a period of one year in the case of promotion.

Explanation.--(i) Approved officiating service shall be taken as a period spent on probation but no member, who is officiating in any appointment shall on the completion of the probationary period prescribed, be confirmed until he is appointed against a permanent vacancy.

(ii) If the work or conduct of any member during his period of probation is, in the opinion of the appointing authority, not satisfactory, the appointing authority may dispense with his services or revert him to his former post if he has been appointed to that post otherwise than by direct recruitment.

(iii) On the completion of the period of probation of any member, the appointing authority prescribed in Rule 4, may confirm such member in his appointment or if his work or conduct has, in the opinion of the appointing authority, not been satisfactory, may dispense with his service, or revert him to his former post, if he has been appointed otherwise than by direct appointment or may extend the period of probation and thereafter pass such orders on the expiry of probation as it could have passed on the expiry of the first period of probation:

Provided always that the total period of probation including extension, if any, shall not exceed three years.

The proviso to this rule makes it evident that the probationary period of a member of the service shall not extend in any case beyond three years. That being so, it is clear that if these rules are applicable in the case of the Respondent, he must be deemed to have acquired the status of a permanent employee after the expiry of three years from 15th December, 1962, since when he worked as an Educational Panchayat Officer on a permanent post.

In the State of Punjab v. Dharam Singh 1968 2 S.L.R. 247 the Respondents were officiating in permanent posts and under Rule 6(3) they continued to hold those posts on probation in the first instance for one year. The maximum period of probation fixed by the rules was three years which expired on October 1, 1960. The Respondents continued to hold their posts after October 1, 1960, but formal orders confirming them in their posts were not passed. Under Rule 7, the Director of Public Instruction, Punjab was the appointing authority. He terminated their services. The order of termination in each case stated that the services of the Respondent concerned "are hereby terminated in accordance with the terms of his employment. The order shall take effect after one month from the date it is served on him." On these facts the Supreme Court was pleased to observe:

In the present case, Rule No. 6(3) forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negative by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication.... It follows that on the dates of the impugned orders, the Respondents had the right to hold their posts. The impugned orders deprived them of this right and amounted to removal from service by way of punishment, without conforming to the constitutional requirements of Article 311 of the Constitution.

Learned Advocate-General appearing for the State has argued that the rules in question were promulgated after the appointment of the Respondent and, therefore, they cannot be applied retrospectively in his case. He has not been, however, able to show that there are any separate rules prevalent with the State for regulating the conditions of service of those appointed earlier to the service. Moreover, it is difficult to believe that there can be two sets of rules for regulating the conditions of service of employees belonging to the same cadre, as such a differentiation would ordinarily be prohibited under Article 14 of the Constitution.

Rule 2 of the aforesaid rules which deals with definition provides that "Member" means a member of the Himachal Pradesh Panchayat Department Class III Service" and Rule 9 speaks about "Members of the service". The notification, dated 13th August, 1962, pre-supposes the existence of Himachal Pradesh Panchayat Department Class III Service as it lays down only the method of recruitment, the necessary qualification for appointment to such service and the conditions of service of persons appointed to such service. It does not speak of the organization of such a service. Admittedly the Respondent is an Educational Panchayat Officer and, therefore, a member of the Himachal Pradesh Panchayat Department Class III Service. We are, therefore, of opinion, that Rule 9 of the aforesaid rules is applicable not only to those who were appointed after its promulgation but also in the case of the Respondent who was a member of that service on the date of its promulgation.

There is another aspect of the question. Rule 9 does not lay down that it shall apply only to those who have been appointed substantively on permanent vacancies. Under this rule it is enough if a person had worked on a permanent post even in a temporary capacity for more than three years. In that case his period of probation shall be considered to have ended and he will be deemed to have been made permanent, although no ''such order had been passed by the appointing authority.

Admittedly the Respondent had worked on a permanent post for more than three years. There is nothing to suggest that there is a separate set of rules governing the conditions of service of the Respondent. It must, therefore, be held that Rule 9 applies to his case and on the date of the impugned order he was holding the post in a permanent capacity and had the right to hold that post. The impugned order deprives him of this right and reduces him in rank by reverting him to a lower post. The order is void because it does not conform to the constitutional requirements of Article 311 of the Constitution.

In the result, we uphold the order of the learned single Judge but for different reasons and dismiss this appeal with costs, which we assess at Rs. 200 only.