The State of Punjab and Others vs Sant Singh Dewa Singh

D. Falshaw, C.J.—This is an appeal filed under Clause 10 of the Letters Patent by the State of Punjab and others against the order of Harbans Singh, J. accepting a petition filed under Article 226 of the Constitution by Sant Singh Respondent and quashing an order of the Director, Consolidation of Holdings, Punjab, removing him from service.

The relevant facts are that Sant Singh was appointed as a Sub-Inspector in the Consolidation Department in Pepsu in June 1954 by the then Settlement Commissioner, Pepsu. After the merger Pepsu and Punjab in 1956 Sant Singh continued to hold the post of Sub-Inspector by integration into the Punjab Consolidation Department, but after an enquiry in which certain charges of misconduct were found to have been established against Sant Singh and he had been called on to show cause why he should not be dismissed from service an order dismissing him from service was passed on 29tth July 1960 by the Director, Consolidation of Holdings, Punjab.

In his petition under Article 226 of the, Constitution Sant Singh challenged the order of his dismissal on various grounds Including mala fides, but principally the question was whether the order was bad for contravening the provisions of Article 311(1) of the Constitution to the effect that no civil servant shall be dismissed-or removed by an, authority subordinate to that by which he was appointed It is not even now contended that the Director, Consolidation of Holdings, Punjab is in any way subordinate or inferior in status to the Settlement Commissioner, Pepsu, whose post had ceased to exist when the merger took place. Reliance is, however, placed, on the provisions of Section 116 of the Central Act, the States Reorganisation Act, XXXVII of 1950. Section 116 deals with the continuance of officers in the same posts and Sub-section (1) reads:

Every person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the Union or of an existing State in any area which on that day falls within another existing State or a new State or a Union Territory shall except where by virtue or in consequence of the provisions of this Act such post or office ceases to exist on that day, continue to hold the same post or office in the other existing State or new State or Union Territory in which such area is included on that day, and shall be deemed as from that day to have been duly appointed to such post or office by the Government of or other appropriate authority in such State, or by Central Government or other appropriate authority in such Union Territory, as the "case may be".

It is not disputed that on the 1st of November 1956 when the merger took place no such officers as Sub-Inspectors were, being appointed in the Punjab Consolidation of Holdings Department and so neither the Director, Consolidation of Holdings, Punjab nor any other officer had the power to appoint Sub-Inspectors. In the circumstances the learned Single Judge has found that there was no "other appropriate authority" in the Stale within the meaning of the words used in Section 116(1) who could have appointed the Petitioner as a Sub-Inspector and that therefore he must be deemed to have been appointed by the State Government. From this followed that the only authority which could properly dismiss him from service was the State Government.

The principle that, where there has been merger of States, In deciding whether there has been a contravention of Article 311(1) It is incessant to consider not which was the authority which originally appointed the official concerned to his post in the State which has subsequently been merged, but what authority appointed him to his post on the merger, has been laid down by Sobhagmal Vs. State, and with this principl I am in respectful agreement. It is therefore clear that in the present case the authority which appointed Sant Singh at a Sub-Inspector in the Consolidation. Department in the new State of Punjab must be the authority which is deemed to have appointed him by the provisions of Section 116(1) of the Act.

On behalf of the State reliance is placed on a directive dated the 19th of February 1959 issued by the State Government to the Director, Consolidation of Holdings, Punjab, the relevant portion of which reads:

You are also empowered to impose punishments on Inspectors and Sub-Inspectors, Consolidation of Holdings, of erstwhile Pepsu State except that the powers to suspend, censure and to stop their increments will also vest in the respective Settlement Officers, Consolidation of Holdings. It may, however, be clarified (hat the above delegations do not include the power to remove or dismiss these officials as this power will continue to vest in the authorities which appointed them in view of Article 311(1) of the Constitution of India. In other words, you will be competent to removes or dismiss those officials who were appointed by the erstwhile Settlement Commissioner, Pepsu.

However, while the latter part of this directive clearly shows that the State Government had in mind the principles of Article 311(1) of the Constitution regarding the dismissal or removal from Service of integrated officials from Pepsu, it does not show that they had in mind the full effect of the provisions of Section 116(1) of the Act, since the directive did not in terms made the Director, Consolidation of Holdings, Punjab, the authority for appointing Sub-Inspectors and Inspectors. This ;power had in fact been taken away from the Director some time earlier when the appointment of Sub-Inspectors and Inspectors ceased altogether in the then Punjab.

In the circumstances I am of the opinion that the view taken by the learned Single Judge was correct, and that since there was no "appropriate authority" at the time of the merger or thereafter who could appoint Sub-Inspectors in the Consolidation Department, the Petitioner Sant Singh must be deemed in the terms of Section 116(1) to have been appointed to his post by the Government of Punjab, and therefore, within the meaning of Article 311(1), no lesser authority could order his dismissal from service. The result is that the appeal fails and is dismissed, but the parties may be left to bear their own costs.

A.N. Grover, J.

I agree.