Full Judgment Text
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PETITIONER:
STATE OF PUNJAB & ORS.
Vs.
RESPONDENT:
BALBIR SINGH ETC. ETC.
DATE OF JUDGMENT06/10/1975
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
ALAGIRISWAMI, A.
GOSWAMI, P.K.
CITATION:
1977 AIR 629 1976 SCR (2) 115
1976 SCC (3) 242
CITATOR INFO :
D 1984 SC1271 (27)
ACT:
Art. 311(2) of The Constitution Civil Service-Reversion
to substantive posts not by way of punishment-Punjab Service
of Engineers (Class II) Rules 1965-Punjab Service of
Engineers, Building & Roads Branch (Recruitment and
Conditions of Service) Rule 1942-Punjab Reorganisation Act
1966-Secs. 2 2(5), 82, 83, 88-Continuance of laws and
administrative orders after reorganisation-Distinction
between adjustment of territories by reorganisation and
change of sovereignty by succession, conquest, merger or
Integration-An administrative order becomes effective when
made or when communicated-Refund of remuneration received by
a Govt. employee losing writ petition Ultimately.
HEADNOTE:
The respondents in the above 13 appeals by Special
leave alongwith 2 others filed 15 Writ Petitions in the High
Court of Punjab and Haryana challenging. the order dated 28-
10-1966 made by the Government of the erstwhile undivided
State of Punjab reverting the respondents to their
substantive ranks. The respondents were promoted and
appointed as S.D.Os. on officiating basis in the Punjab
Public Works Department on the various dates between the 1st
March, 1956 and 10th May, 1963. The erstwhile State of
Punjab was reorganised by the Punjab Reorganisation Act,
1966. On 1st November, 1966 the former State of Punjab
ceased to exist and the successor States of Punjab, Haryana,
Union territory of Chandigarh and the transferred territory
came into being. According to section 82 of the Punjab
Reorganisation Act every person who immediately before the
appointed day was serving in connection with the affairs of
the existing State of Punjab would on and from that day
provisionally continue to serve in connection with the
affairs of the State of Punjab unless he is required by
general or special order of the Central Government to serve
provisionally in connection with the affairs of any other
successor State. Section 83 provides that every person who
immediately before the appointed day is holding or
discharging the duties of any post or office in connection
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with the affairs of the existing State of Punjab in any area
which on that day falls within any of the successor State
shall continue to hold the same post or office in that
successor State and shall be deemed on and from that day to
have been duly appointed to the post or office by the
Government or other appropriate authority in the successor
State. Sec 88 provides that the law applicable in the
territory will continue to apply after reorganisation unless
otherwise provided by a competent legislature. Section 2(g)
of the Act defines law as including any enactment,
ordinance, regulation, order, by-law, rule, scheme,
notification or other instrument, having the force of law.
The impugned orders of reversion were communicated to the
respondents after 1st November, 1966. The orders were passed
by the Government in consultation with the Punjab Public
Service Commission before 1st November, 1966. The Chief
Engineer sent the said orders on 30-10-1966. The orders were
however received after 1st November, 1966.
Before the learned Single Judge of the High Court. the
respondents contended that they were governed by the Punjab
Service of Engineers, Buildings and Roads Branch
(Recruitment and Conditions of Service) Rules 1942, under
which they became automatically confirmed as members of the
service and could not be reverted without complying with the
provisions of Article 311 of the Constitution. The learned
Single Judge allowed the Writ Petitions on that ground.
On an appeal before the Divisional Bench by the
appellants, the Division Bench divided the respondents into
three categories. (1) those who were promoted after 1942
Rules were repealed: (2) those who were promoted within 3
years preceding the repeal of ]942 Rules: and (3) those who
were
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promoted more than three years prior to such repeal. In the
case of first category, the High Court held that the 1942
Rules did not apply. In the case of the second category the
Division Bench held that they were not entitled to get the
benefits of 1942 Rules since they had not completed the
period of 3 years probation to acquire the substantive post
in accordance with the 1942 Rules. Regarding those
respondents who fell in the third category, the Division
Bench held that they were promoted in the erstwhile Patiala
and East Punjab States where the similar rules did not exist
and could not be given the advantage of 1942 Rules. The
Division Bench held that Punjab Service of Engineers Class
II 1965 Rules were applicable and therefore before the
respondents could be absorbed and admitted to Class II
service approval of the Public Service Commission was
required. In the present case, since the Commission did not
find them suitable they had to he reverted to their
substantive ranks. On a consideration of large number of
authorities the Division Bench came to the conclusion that
the reversion of the respondents was not hit by Art. 311(2)
of the Constitution since the reversion was not by way of
punishment. The Division Bench, however, held that the
impugned orders were communicated to the respondents after
1-11-1966 and hence they remained ineffective and still born
by reason of their not having been communicated to the
respondents before 1st November, 1966. The Division Bench,
therefore, dismissed the appeals filed by the appellants.
In appeals by Special leave, the appellants contended
that the decision of the Division Bench that the orders of
reversion remained ineffective and still born was erroneous.
^
HELD:
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1. The Division Bench rightly held that the orders of
reversion were not hit by Art. 311(2) of the Constitution.
This aspect of the matter is now clearly covered by the
decision of this Court in the case of Shamsher Singh v. The
State of Punjab [1975] S.C.R. 814. This part of the judgment
of the Division Bench was not seriously disputed.
[120-E-F]
2. The impugned orders were not law within the meaning
of s. 2 (g) and were, therefore not saved by s. 88. S.88 was
introduced as a matter of abundant caution. The law which
was in force before the appointed day in the former State of
Punjab were bound to continue until competent Legislature or
authority of the successor States effect any change in those
laws. If this could be the position in the continuance of
the law in the successor States on what principles one can
say that the administrative orders made by the erstwhile
State of Punjab automatically lapsed and came to an end on
and from the appointed day on the coming into existence of
the successor States.
3. When there is no change of sovereignty and it is
merely an adjustment of territories by the reorganisation of
a particular State, the administrative orders made by the
Government of the erstwhile State continue to be in force
and effective and binding on the successor States until and
unless they are modified changed or repudiated by the
Governments of the successor States. No other view is
possible to be taken. The other view will merely bring about
chaos in the administration of the new States. The
principles laid down by this Court in following cases:
(1) Rajvi Amar Singh v The State of Rajasthan [1958]
S.C.R. 1013 and
(2) Rajkumar Narsingh Pratap Singh Deo v State of
Orissa and Another [1964] 7 S.C.R. 112.
are not applicable to the present case as this is not a case
of absorption of one State in another by succession,
conquest, merger or integration. It would be chaotic if
these principles were to be applied to the case of
reorganization of States in the same country. [123H, 124A-D]
4. On the facts and circumstances of this case the
successor State far from repudiating or modifying the orders
of reversion adopted those orders as their own. The High
Court was wrong in holding that the orders were communicated
on or after 1st November, 1966 when they were actually
received by the
117
officers concerned. Following the judgment of this Court in
the case of State of Punjab v. Khemi Ram, A.I.R. 1970 S.C.
214, it was held that the orders were communicated either on
29-10-1966 or surely on 30-10-1966. The judgment of this
Court in the case of Bachiter Singh v. The State of Punjab,
[1962] 3 Suppl. S.C.R. 713, distinguished. [125A-C]
5. It is one thing to say that in the case of dismissal
or the like the order becomes effective only after it is
received by the officer concerned and a different thing to
say that an order has no effect at all before it is
communicated in the sense of receipt of the order by the
officer concerned. The orders in the present case became
effective as soon as they were sent out and for the purpose
of section 83 of the Act the respondents must be deemed to
be holding the posts to which they were reverted on 1st
November, 1966. [125-G-H 126A]
6 . About 9 years have passed after the impugned orders
of reversion were passed. After the High Court judgement,
all the respondents were officiating in the higher posts.
After the reversion orders were passed and before the High
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Court judgment was delivered the respondents were not
working in the higher posts. The appellant, therefore,
claimed the difference of salary paid to the respondents
during this period when they were not working as S.D.Os. The
respondents contended that even during this period they were
either working as S.D.Os or had gone on leave while
continuing in such posts. In the circumstances justice
requires that the Government should not claim any refund of
any part of the salary paid to the respondents up to date.
[126G-H, 127A-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 518 to
530 of 1970.
Appeals by Special Leave from the Judgment and order
dated the 21st May, 1969 of the Punjab and Haryana High
Court in L.P.As. Nos. 286, 327, 340, 368, 374, 375, 376,
377, 378, 379, 380, 502 and 511 of 1968.
O.P. Sharma (In all appeals) V. C. Mahajan (In C.A.
518) Kapil Sibal (In C.As. 529-530) and N. S. Das Bahl (In
C. A. 519-528 for the Appellants.
M. N. Phadke, Mrs. Archana Kumar, M. R. Agnihotri and
P. C. Bhartari for Respondents in C.A. 526.
K. P. Bhandari (In CA 521) M. R. Agnihotri (In CA 522)
K.J.John (in Cas. 524, 527 and 528), and P. C. Bhartari (In
all appeals) for the Respondents.
S. K. Mehta, K. R. Nagaraja, M. Qamaruddin, P. N. Puri
and K. L. Mehta for Respondents (In CA. 530).
The Judgment of the Court was delivered by
UNTWALIA, J. -In these 13 appeals by special leave the
appellants are (1) the State of Punjab, (2) Union of India.
Respondent no. 1 in Civil Appeal No. 519 of 1970 and the
sole respondent in each of the remaining 12 appeals are the
concerned Government servants. The said 13 Government
servants alongwith two more filed 15 writ petitions to
challenge order dated the October 28, 1966 made by the
Government of the erstwhile undivided State of Punjab. Their
writ applications were allowed by a learned single Judge of
the High Court of Punjab and Haryana at Chandigarh. 15
Letters Patent Appeals were filed by the appellants. They
have been dismissed by a
118
Division Bench of the High Court. 13 appeals have been
brought to this Court and not the other two. Since the
Division Bench of High Court has disposed of all the 15
Letters Patent appeals by a common judgment, to avoid
confusion in the statement of facts we think it better to
state in a chart form the number of the Civil Appeal the
corresponding number of the L.P.A. and the name of the
Government servant concerned.
Civil Appeals of 1970 L. P. As of Names of the Govt.
servants 1968
518 ................. 286 Balbir Singh
519 ..................327 Bhagwan Singh
520 ..................340 Surmukh Singh
521 ............... . 368 Dasaundi Ram
522 ..................374 Jagdish Singh
523 ..................375 R. R. Bhanot
524 ..................376 Surat Singh
525 ..................377 Shamsher Singh
526 ..................378 Bakhatawar Singh
527 ..................379 Jodh Singh
528...................380 Kartar Singh
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529...................502 Gurcharan Singh
530 ..................511 Gurbux Singh
nil ..................289 Devdutta
nil ..................328 Sushil Kumar Khallar
At the outset it may be stated that the respondent in Civil
Appeal No. 521 Dasaundi Ram is dead and that appeal has
abated on that account. Bhagwan Singh, respondent in Civil
Appeal No. 519 does not seem to be in service any longer and
no body has appeared in this Court on his behalf. Out of the
remaining 11 respondents, we were informed at the Bar, that
the 7 respondents in Civil Appeals 522 to 527 and 529 have
since retired from service. Only 4 of the respondents in
Civil Appeals 518, 520, 528 and 530 are still in service.
Respondents Balbir Singh, Surmukh Singh, Dasaundi Ram,
Jagdish Singh, Surat Singh, Kartar Singh and Gurbux Singh
were promoted and appointed on officiating basis as Sub-
Divisional Officers in the Punjab Public Works Department
(Buildings and Roads Branch) on various dates between 30-7-
1960 to 10-5-1963. Respondents R. R. Bhanot, Jodh Singh and
Gurcharan Singh were so appointed between dates 17-12-1957
and 10-12-1959. Respondents Shamsher Singh and Bhakhtawar
Singh were promoted on 22-10-1956 and 1-3- 1956
respectively. Respondent Kartar Singh was working as
planning Assistant-cum-Draftsman while the other respondents
were Overseers before they were appointed as officiating
Sub-Divisional Officers. By the impugned order dated October
28, 1966 the then Government of the erstwhile Punjab State
reverted them to their original rank. The orders of their
reversion were challenged by the said respondents on the
ground that they were governed by the Punjab Service of
Engineers, Buildings and Roads Branch (Recruitment and
Conditions of Service) Rules, 1942 (for brevity, the 1942
Rules). They claimed that they
119
had become automatically confirmed as members of the service
under the said Rules and could not be reverted without
complying with the provisions of Article 311(2) of the
Constitution of India and the other statutory Rules relating
to disciplinary matters. This was the only point which
succeeded before the learned single Judge and he allowed all
the writ applications, it appears, without fully
appreciating, the distinction of facts of the various cases
for the acceptance of this ground.
Respondent Bhagwan Singh was appointed as temporary
Assistant Engineer on completion of his six months training
period with effect from December 3, 1960. His service was
terminated by the then Punjab Government by order dated
October 28, 1966 on the ground of his having been found
unsuitable for appointment to P.S.E. Class II (B & R
Branch). Bhagwan Singh also relied upon 1942 Rules before
the learned single Judge and succeeded.
The Division Bench has very carefully and elaborately
considered the application of the 1942 Rules to the cases of
the respondents. It has disagreed with the single Judge’s
view. After copiously quoting from the 1942 Rules, the High
Court in appeal has referred to the Punjab Service of
Engineers Class I P.W.D. (Buildings and Roads Branch) Rules
1960 (for brevity, the 1960 Rules) regulating the
recruitment and conditions of service of persons appointed
to the P.S.E. Class I service. The 1960 Rules came into
force on and from March 18, 1960. It had repealed the 1942
Rules by Rule 24 with a saving clause in the proviso
appended thereto. The High Court then referred to the Punjab
Service of Engineers, Class II P.W.D. (Buildings and Roads
Branch) Rules, 1965 (for brevity, Class II 1965 Rules). The
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said Rules came into force from February 19, 1965. The stand
on behalf of the State of Punjab in the High Court was :-
(1) that the 1942 Rules did not govern the cases of the
respondents as the said Rules applied to class I service
consisting of Assistant Executive Engineers and officers of
higher ranks only; (2) that the respondents had to be taken
in P.S.E. Class II service in accordance with Rule 6(5) (b)
of Class II 1965 Rules read with paragraph 1 (d) of Appendix
’G’ of the said Rules, in consultation with the Punjab
Public Service Commission; (3) that since the Commission did
not find them suitable for being admitted to that service,
they were reverted to their substantive rank in accordance
with the terms and conditions of their service and not by
way of punishment.
The High Court made a comparative study of 1942 Rules,
1960 Rules and Class II 1965 Rules and came to the
conclusion that the officiating Sub-Divisional officers, as
the respondents were, not being Assistant Executive
Engineers, were not governed by the 1942 Rules. None of them
had claimed that he was holding the rank of Assistant
Executive Engineer in any capacity. The view of the learned
single Judge that the Sub-Divisional Engineers were included
in the category of Assistant Executive Engineers did not
find favour with the Bench. The Bench further pointed out
that the respondents should be divided into three
categories: (a) those who were promoted subsequently to the
9-L1276SCI/75
120
repeal of the 1942 Rules, (b) those who were promoted with
him three years preceding such repeal and (c) those who were
promoted more than three years prior to such repeal. The
respondents promoted on dates between 30.7.1960 and
10.5.1963 fell within the first category. Obviously they
could not claim the protection on the basis of 1942 Rules.
The three respondents who were appointed as officiating Sub-
Divisional officers between 17-12-1957 and 10-12-1959 fell
within the second category. The High Court rightly held that
they had not completed the maximum period of three years
probation to acquire the substantive posts of Sub-Divisional
officers fixed under Rule 12(3) of 1942 Rules, even assuming
that they could take advantage of the same. Respondents
Shamsher Singh and Bakhatawar Singh had been promoted in the
year 1956 and fell within the third category. The Division
Bench pointed out that in their case the difficulty in the
application of the 1942 Rules was that they were promoted in
the erstwhile Patiala and East Punjab States Union. It could
not be shown that there were any statutory Rules governing
their conditions of service and appointments as Sub-
Divisional Officers. Since on the date of the impugned order
dated 28.10.1966 they had put in more than 10 years of
service as officiating Sub-Divisional officers, their case
was considered to be a hard one. But for the purpose of the
law they could not be given the advantage of the 1942 Rules
and obviously so.
It is plain that the case of none of the respondents
was covered by the 1942 Rules. All the respondents had to be
absorbed and admitted to P.S.E. Class II service in
accordance with Class II 1965 Rules and that required the
approval of the Public Service Commission. Since Commission
did not find them suitable, they had to be reverted to their
substantive ranks. On a consideration of a large number of
authorities the High Court has rightly come to the
conclusion that their reversion was not hit. On account of
the non compliance with the provisions of Article 311(2) of
the Constitution or any Rules governing the disciplinary
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action. The reversion was not by way of punishment. This
aspect of the matter is now squarely covered by the decision
of this Court in Shamsher Singh & Anr. v. State of Punjab(1)
(vide page 837).
A few new points were urged on behalf of the
respondents in the Letters Patent appeals. They were not
allowed to be raised except the one which eventually
succeeded and the Letters Patent appeals were allowed on the
basis of that point.
The decision of the High Court as respects the
application of the 1942 Rules to the cases of the
respondents and the order of reversion not being hit by the
alleged non compliance with Article 311(2) of the
Constitution could not be seriously challenged before us. We
agree with the view expressed by the Division Bench. It is
not necessary to repeat all that has been said by the High
Court in that regard. We now proceed to consider the only
substantial question which falls for determination in these
appeals.
(1) [1975] 1 S. C. R. 814.
121
The erstwhile State of Punjab was re-organized by the
Punjab Re-organisation Act, 1966, Central Act XXXI of 1966,
hereinafter called he Act. On the appointed day i.e. On 1-
11-1966 the former State of Punjab ceased to exist and the
successor States of Punjab, Haryana, Union Territory of
Chandigarh and the Transferred Territory came into being.
All the respondents except respondent Bhagwan Singh came to
be allocated to the new State of Punjab. Bhagwan Singh was
allocated to Haryana and then to Himachal Pradesh. The High
Court took the view that the impugned orders were
communicated to the respondents concerned on or after
1.11.1966 and hence they "remained ineffective and still-
born by reason of their not having been communicated to the
respondents before 1.11.1966." Though this point had been
taken in the writ petitions, it does not seem to have been
pressed before the learned single Judge. The Division Bench
treating it as a pure question of law allowed it to be
raised in the Letters Patent appeals and ultimately
dismissed the appeals by holding in favour of the appellants
that since the impugned orders were communicated to them
after coming into force of the new successor States they
could not affect their status and position which they held
on 1.11.1966.
The factual position in relation to the point at issue
is like this. The erstwhile State of Punjab was under the
President’s Rule before its re-organization. The order in
the name of the President of India . authenticated by
Secretary to Government of Punjab, P.W.D. B&R/ P.H. Branches
recited "The President of India, in consultation with the
Punjab Public Service Commission, does not consider the
following officiating Sub-Divisional officers of Punjab,
P.W.D. B & R Branch, suitable for appointment to P.S.E.
Class II (B & R Branch) and accordingly they are reverted as
indicated below with immediate effect." The list contains
the names of 20 officers including the ’names of 12
respondents other than respondent Bhagwan Singh. An Issue
Book was shown to us at the time of the hearing of these
appeals by the State counsel indicating that the Government
order aforesaid was forwarded to the Accountant General
Punjab, Simla and to the Chief Engineer Punjab P.W.D. & R
Branch, Patiala, for information and necessary action. The
Chief Engineer as it appears from the statement in the
counters filed on behalf of the State communicated the order
to the officers concerned as per his Memo No. 8E/47/Re-
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org/11670 710 dated 30.10.1966. The respondents, however,
seem to have received the orders on or after 1.11.1966. The
question for consideration is whether the view of the High
Court that the orders being administrative in nature were
not laws within the meaning of the Act and hence were not
saved by section 88 is correct and whether r’ they remained
ineffective and inoperative because they not communicated to
the respondents before 1.11.1966.
Under the Act certain territories were carved out from
the appoint ed day from the then existing State of Punjab.
Under sections 3 and 4 were formed the State of Haryana and
the Union Territory of Chandigarh. The territories mentioned
in section 5 were added to the then Union territory of
Himachal Pradesh. The balance was to
122
remain in the State of Punjab under- section 6. Sections 3
to 6 occur in Part II of the Act. Part III deals with the
representation in the Legislatures and allocation of sitting
members etc. Part IV concerns the making of the existing
High Court as the common High Court for Punjab, Haryana and
Chandigarh. Part V is headed "Authorisation of Expenditure
and Distribution of Revenue." Part VI deals with
’Apportionment of Assets and Liabilities." Part VII makes
provisions as to certain Corporations. Part VIII relates to
Bhakra Nangal and Beas Projects. We are concerned with some
of the sections of Part IX headed Provisions as to services
and Part X making Legal and miscellaneous provisions.
Section 81 in Part IX contains provisions relating to All
India Services. Section 82 (1) is important and reads as
follows:
"Every person who immediately before the appointed
day is serving in connection with the affairs of the
existing State of Punjab shall, on and from that day,
provisionally continue to serve in connection with the
affairs of the State of Punjab unless he is required,
by general or special order of the Central Government,
to serve provisionally in connection with the affairs
of any other successor State."
According to the provision aforesaid all the respondents
provisionally continued to serve in connection with the
affairs of the State of Punjab and eventually also all of
them (except Bhagwan Singh) continued to serve with that
State. We shall now read section 83 on which great reliance
was placed on behalf of the respondents:
"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 existing
State of Punjab ill any area which on that day falls
within any of the successor States shall continue to
hold the same post or office in that successor State
and shall be deemed, on and from that day, to have been
duly appointed to the post or office by the Government
of, or other appropriate authority in, that successor
State:
Provided that nothing in this section shall be deemed
to prevent a competent authority on or after the appointed
day from passing in relation to such person any order
affecting his continuance in such post or office."
Section 88 occurring in Part X provides:
"The provisions of Part II shall not be deemed to have
effected any change in the territories to which any law in
force immediately before the appointed day extends or
applies, and territorial references in any such law to the
State of Punjab shall, unless otherwise provided by a
competent Legislature or other competent authority, be
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construed as meaning the territories within that State
immediately before the appointed day."
123
Law is defined in clause (g) of section 2 of the Act to
say:
"law" includes any enactment, ordinance,
regulation, order, bye-law, rule, scheme, notification
or other instrument having, immediately before the
appointed day, the force of law in the Whole or in any
part of the existing State of Punjab;
We agree with the High Court that the impugned orders in
question were not law within the meaning of section 2(g) and
hence were, in terms, not saved by section 88. We think the
High Court is right when it says:
"Section 88 appears to have been introduced as a
matter of abundant caution. In my opinion, mere
splitting up of the territories of Punjab into four
successor States would not ipso facto result in the
abrogation or repeal of the laws which were immediately
in force before the appointed day in those territories.
There is nothing in the 1966 Act, not l even in Section
88, which expressly or by necessary intendment repeals
the law which were in force immediately be fore the
appointed day in the territories of the former Punjab.
Those laws derived their force de hors the 1966 Act.
The first part of Section 88 is merely clarificatory of
any doubts which might arise as a result of the
reorganisation of Punjab, while the latter part of this
section is merely an adaptative provision, to the
effect, that the territorial references in any such law
to the State of Punjab shall continue to mean the
territories within that State immediately before the
appointed day. Thus, read as a whole Section 88 merly
dispels doubts as to the continuity of the laws which .
were in force before the appointed day in the former
State of Punjab, until the competent legislature or
authority of the successor States effects any change in
those laws."
If this could be the position in the continuance of the
law in the successor States, on what principles one can say
that the administrative order made by the erstwhile State of
Punjab automatically lapsed and came to an end on and from
the appointed day on the coming into existence of the
successor States. Is it possible to take the view that the
Legislature when it made so many provisions in the Act in
its various parts in regard to the matters already referred
to, did not think it appropriate to make a provision for the
continuance of the effect of the administrative orders
passed by the Government of the erstwhile State of Punjab
until the Governments of the successor States modified or
changed it ? or, is it? as a matter of law and propriety,
reasonable to think that the Legislature did not consider it
necessary at all to make such an express provision, as the
continuance of the effect of such orders was to obvious even
without such a provision ? In our Judgment when there is no
change of sovereignty and it is merely an adjustment of
territories by the reorganization of a particular State, The
administrative orders made by the Government of the
erstwhile
124
State continue to be in force and effective and binding on
the successor States until and unless they are modified,
changed or repudiated by the Governments of the successor
States. No other view is possible to be taken. The other
view will merely bring about chaos ill the administration of
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the new States. We find no principle in support of the stand
that administrative orders made by the Government r of the
erstwhile State automatically lapsed and were rendered
ineffective on the coming into existence of the new
successor States.
On behalf of the respondents reliance was placed upon
the decision of this Court in Rajvi Amar Singh v. The State
of Rajasthan(1) and’ Rajkumar Narsingh Pratap Singh Deo v.
State of Orissa and another(2) Bose, J.. delivering the
judgment of the Court in the former ease had: said at page
1018:
"Now it is well established that when one State if
absorb ed in another, whether by accession, conquest,
merger or integration, all contracts of service between
the prior Government and its servants automatically
terminate and thereafter those who elect to serve in
the new State and are taken on by it, serve on such
terms and conditions as the new State may choose to
impose. This is nothing more, (though on a more exalted
scale), than an application of the principle that
underlines the law of Master and Servant when there is
a change of masters."
The said principle is not applicable to the case on hand as
it is not a case of absorption of one State in another by
accession, conquest merger or integration. It would be
chaotic in this principle were to be applied to the case of
re-organization of States in the same country. In the case
of Raj Kumar N. P. Singh Deo (supra) a question arose as to
whether the sanad granted by the ruler of Dhenkanal who was
an absolute monarch and which State after independence of
India came to be merged in the State of Orissa was a purely
executive act or a law within the meaning of Article 372 of
the Constitutional. This Court decided that this was purely
an executive act. The Orissa Government had discontinued the
payment of the allowance under the sanad to the grantee. The
action was upheld on the ground that the executive act of
the ruler of another sovereign State could not be binding on
the Orissa Government and that Government had full authority
to discontinue the payment of the allowance. Indirectly the
said decision of this Court supports the view which we have
ex pressed above. We are, therefore, of the opinion that the
impugned orders passed by the Government of the erstwhile
State of Punjab continued to be the orders of the
Governments of the concerned successor States until and
unless they were modified, changed or repudiated by them
Nothing of the kind was done by the new State of Punjab;
rather, by treating that order as valid and adopting it as
its own, the new State of Punjab resisted the writ
applications and pursued the matter in the Letters Patent
appeals and up to this Court in these appeals.
(1) [1958] S. C. R. 1013. (2) [1964] 7 S. C. R. 112;
125
On the facts and in the circumstances of these cases we
do not agree with the High Court that the communication of
the orders was on or after 1-11-1966 when they were actually
received by the officers concerned. Following the ratio of
the decision of a Bench of 4 Judges of this Court, in the
case of State of Punjab v. Khemi Ram(1) we hold that the
orders were communicated either on 29-10-1966 or surely on
30-10-1966. The earlier decisions of this Court have been
considered by Shelat, J. in the decision aforesaid. In
Bachillar Singh v. The State of Punjab(2) no formal order of
the Government had even been drawn up, much less
communicated, and, therefore, it was held that it was
neither an order of the Government nor was the order
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communicated. What is the meaning of communication of the
order in a given case did not fall for decision before this
Court in the case of Bachittar Singh.
In the case of State of Punjab v. Amar Singh Harika(3)
the order of dismissal passed on 3rd June, 1949 was actually
communicated to the officer concerned on 2/3rd January,
1953. But before the said date the said officer had come to
know on 28th May 1951 about the dismissal order. This date
was taken to be the date of communication. Shelat, J. has
considered the earlier cases of this Court including the one
in S’. Pratap Singh v. The State of Punjab(4) a paragraph 16
of the judgment the law laid down is:
"lt will be seen that in all the decisions cited
before us it was the communication of the impugned
order which was held to be essential and not its actual
receipt by the officer concerned and such communication
was held to be necessary because till the order is
issued and actually sent out to the person concerned
the authority making such order would be in a position
to change its mind and modify it if it thought fit. But
once such an order is sent out, it goes out of the
control of such an authority, and therefore there would
be no chance whatsoever of its changing its mind or
modifying it. In our view, once an order is issued and
it is sent out to the concerned government servant, it
must be held to have been communicated to him, no
matter when he actually received it."
Applying the principle of law aforesaid we find in this case
that the orders went out of the control of the authority
which had passed that order on 29-10-1966 when copies of the
orders were forwarded to the Accountant General and the
Chief Engineer. In any event, we think that the orders were
despatched from the office of the Chief Engineer on 3-10-
1966. It is one thing to say that in the case of dismissal
or the like the order becomes effective only after it is
received by the officer concerned and a different thing to
say that an order has no effect at all before it is
communicated in the sense of receipt of the order by the
concerned officer. In the sense we have said above the
(1) A. I. R. 1970 S. C. 214. (2) [1962] 3 Suppl. S. C. R.
713.
(3) A. I. R. 1966 S. C. 1313. (4) [1964] 4 S. C. R. 733
126
orders were communicated to all the respondents before 1-11-
1966. They became effective as soon as they were sent out.
And for the purposes of section 83 of the Act the
respondents must be deemed to be holding the posts to which
they were reverted on 1-11-1966.
Reliance was placed on behalf of the respondents upon
the decision of a learned single Judge of the Punjab &
Haryana High Court in the case of Shil Saran Dass Sood v.
The State of Punjab and others(1) wherein it was held that
there is no provision in the Act where under the proceedings
for disciplinary action against a public servant, who is
allotted to a State other than one in which the proceedings
are pending, could be continued by the Inquiry officer
already appointed nor could such Inquiry officer submit his
report to the corresponding authority in the State to which
the public servant is allocated. We wish to point out that
the proposition of law enunciated in such a bald manner is
not correct. The Inquiry officer may not be competent to
continue the enquiry and submit the report for different
reasons. But it is not correct to say that:
"the Inquiry officer appointed by the
Commissioner, Ambala Division, prior to the re-
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organisation of the State, cannot be taken to be the
Inquiry officer appointed by the Commissioner,
Jullundur Division, after November 1, 1966 as there is
no provision in the Punjab Re-organisation Act where
under the proceedings for disciplinary action against a
public servant, who is allocated to a State other than
the one in which the proceedings are pending, could be
continued by the Inquiry officer already appointed nor
could such Inquiry officer submit his report to the
corresponding authority in the State to which the
public servant is allocated."
Shorn of the complications of other facts if the Inquiry
officer was appointed by the Commissioner of a Division
which was a part of the undivided State and on
reorganisation becomes a part of the new State, the
disciplinary proceeding started earlier can undoubtedly be
continued and concluded without a fresh order of starting a
disciplinary proceeding.
We therefore, hold that the view taken by the High
Court that the orders were still born and ineffective
because They were received by the respondents on or after 1-
11-1966 is not correct.
After careful consideration we have arrived at the
conclusion that. the impugned orders of reversion dated
October 28, 1966 were valid. About 9 years have passed since
then and some complications have arisen during this period.
Admittedly, after the High Court judgment all the
respondents were officiating in the higher posts. At the
time of the hearing of these appeals, we were given to
understand at the Bar that none of the respondents was
reverted pursuant to the impugned order We asked the parties
to ascertain the correct position and file their statements.
On behalf of the Government we have been inform-
(1) 72 Punjab Law Reporter 950.
127
ed that they will not claim any refund of the salaries paid
to the respondents for the period they have worked as
officiating Sub-Divisional officers in the Department. But
they claimed that the respondents were not working as such
after the reversion order and before the High Court Judgment
and hence they are entitled to get back the difference. Of
salary paid to the respondents for the period they have not
worked as Sub-Divisional officers and had worked only as
overseers and Draftsmen in their substantive posts. The
difference of salary for the intervening period between the
order of reversion and the High Court Judgment was paid to
them subject to the furnishing of the bank guarantee. On the
other hand, it is claimed on behalf of the respondents that
even during those periods they were working as S.D.O. or had
gone on leave while continuing in such posts. In the
circumstances justice requires that the Government should
not claim any refund of any part of the salary paid to the
respondents until today. Partly in view of their
understanding and partly because of the requirement of
justice, we direct the Government not to do so.
The final result of the appeals is as follows:
Civil Appeal No. 521/1970 is dismissed as abated on
account of the death of the respondent. The respondent of
Civil Appeal No 519, it is admitted on all hands, is no
longer in service. This appeal is, therefore, dismissed as
infructuous. The remaining 11 appeals are allowed, the
judgments and orders of the High Court both of the single
Judge and the Division Bench are set aside. But this is
subject to the directions given above in regard to the
salary paid to the respondents so far. There will be no
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order as to costs in any of the appeals.
P.H.P
128