# Babula/ v. State of U ttar Pradesh & others

- **Citation:** [1964] 4 S.C.R. 964
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** P. B. Gajendragadkar, K. SuBBA RAo, K. N. W ANcHoo, N. Rajagopala Ayyangar, J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/babula-v-state-of-u-ttar-pradesh-others-3195
- **Pages:** 18

## Headnote

Constitution of India, 1950, Art. 311 (2)-Appointment of
Tahshildars-No substantive vacancies-Creation of supernumerary
poSts-States
reorganisation-''Deconfirmation"
by
successor
State-If violates Art. 311(2) or s. 116 of the States Re-organisation Act (37 of 1956).
The respondents who were officiating Tahsildars in the former
State of PEPSU were confirmed as
Tahsildars by a Notification
issued by the
Financial Con1n1issioner. No posts were available
at that ti111e in \vhich the respondents could be confirmed.
The
next da;i the Rajpramukh sanctioned
the creation of
supernu~
merary posts of 'Tahsildars to provide liens for the
respon<lents
who had been confirmed under the notification. Thereafter, State::>
Re-organisation took place an<l PEPSU merged \.Vith the State of
Punjab. The Punjab Govern1nent subsequently,
by a notification
"de-confirn1ed" the respondents.
The respondents challenged this
notification by \Vay of \Vrit petitions before the Punjab High Court
under Art. 226 of the Constitution. The grounds on
which the
challenge was 111ade were ( 1) the action of the Government amoun··
ted to a reduction in rank and it constituted a violation of Art.
311(2) of the Constitution and (2) it constituted a violation of the
protection given to the
respondents under s.
116 of the
States
Re-organisation Act, 1956.
The single Bench allowed the
writ
petition and after appealing to a Division Bench without· success
the State of Punjab appealed to this Court on special leave.
It was contended on behalf of the State that (1) the order
made by· the PEPSU Government confirming the respondents was
in total disregard of the Punjab Tahsildari Rules and, therefore,
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-
4 S.C.R.
SUPREME COURT REPORTS
965
the successor Government was well within its rights to rectify
the mistake comn1itted by the predecessor Government; (2) Article 311 of the Constitution has no application in a case where the
Government reduces the rank of a Government servant without any
reference to his conduct but only for the reason that the previous
order was contrary to the rules; and (3) assuming that the earlier
order was good, it is always open to the GoYernment to abolish
posts and such an action is not justiciable under Art. 226 of the
Constitution, as it does not violate any statutory provision.
Held: (per P. B. Gajendragadkar, K. N. Wanchoo, N. Rajagopala Ayyangar and J. R. Mudho!kar, JJ. Subba Rao ). dissenting), (i) Had there been any substantive vacancies, actual
or anticipated, there \Vould have been no occasion to create supernumerary posts.
Therefore, it must follow
that
the order of
Financial
Con1missioner
had
no legal foundation~ there
being
no vacancies in v.rhich the confirmations could take place.
His
order therefore, conhrn1ing the respondents as permanent
Tahsildars must be held to be wholly void.
(ii) The order of the Rajpramukh does not appoint the respondents as perrn;:tnent Tahsildars but only mentions the fact of
the confirn1ation of the respondents and others.
Therefore, the
creation of supernun1erary posts
appears to be an afterthought
an_d is of no avail as a means of validating the origin2l order of
confirmation.
(iii) \Vhen an or<ler is voi<l on the ground that the avthority
which made it had no po\Ver to make it, it cannot give rise to any legal
rights. Where a Government servant has no right to a post or to
a particular status, though an authority under the
(}overnment
acting beyond its competence had purported to give that person
a status which it was not entitled to give, he \vill not in lavv be
deemed to have been validly appointed to the post or given the
particular status.
Therefore, the Government notification "de-confirming" the respondents should be interpreted to mean that the
Government did not accept the validity of the confirmation of
the respondents.
(iv) Even though upon their allocation to the State of Punjab they were sho\vn as confirmed Tahsildars, they could not in
law be regarded as holding that status. Legally thei

## Text

_Characters 0–39,956 of 41,943. This is a partial read: ask again with offset=39956 for what follows._

1963
Babula/
v.
State of U ttar
Pradesh & others.
Shah, /.
1963
September 19
964
SUPREME COURT REPORTS
[1964]
tionally giving false evidence in any stage of judicial proceeding.
The appeal therefore fails and is dismissed. No order
as to costs.
Appeal diJmissed.
STATE OF PUNJAB
v.
JAGDIP SINGH & ORS.
(P. B. GAJENDRAGADKAR, K. SuBBA RAo, K. N. W ANcHoo,
N. RAJAGOPALA AYYANGAR AND J. R. MuDHOLKAR, JJ.)
Constitution of India, 1950, Art. 311 (2)-Appointment of
Tahshildars-No substantive vacancies-Creation of supernumerary
poSts-States
reorganisation-''Deconfirmation"
by
successor
State-If violates Art. 311(2) or s. 116 of the States Re-organisation Act (37 of 1956).
The respondents who were officiating Tahsildars in the former
State of PEPSU were confirmed as
Tahsildars by a Notification
issued by the
Financial Con1n1issioner. No posts were available
at that ti111e in \vhich the respondents could be confirmed.
The
next da;i the Rajpramukh sanctioned
the creation of
supernu~
merary posts of 'Tahsildars to provide liens for the
respon<lents
who had been confirmed under the notification. Thereafter, State::>
Re-organisation took place an<l PEPSU merged \.Vith the State of
Punjab. The Punjab Govern1nent subsequently,
by a notification
"de-confirn1ed" the respondents.
The respondents challenged this
notification by \Vay of \Vrit petitions before the Punjab High Court
under Art. 226 of the Constitution. The grounds on
which the
challenge was 111ade were ( 1) the action of the Government amoun··
ted to a reduction in rank and it constituted a violation of Art.
311(2) of the Constitution and (2) it constituted a violation of the
protection given to the
respondents under s.
116 of the
States
Re-organisation Act, 1956.
The single Bench allowed the
writ
petition and after appealing to a Division Bench without· success
the State of Punjab appealed to this Court on special leave.
It was contended on behalf of the State that (1) the order
made by· the PEPSU Government confirming the respondents was
in total disregard of the Punjab Tahsildari Rules and, therefore,
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4 S.C.R.
SUPREME COURT REPORTS
965
the successor Government was well within its rights to rectify
the mistake comn1itted by the predecessor Government; (2) Article 311 of the Constitution has no application in a case where the
Government reduces the rank of a Government servant without any
reference to his conduct but only for the reason that the previous
order was contrary to the rules; and (3) assuming that the earlier
order was good, it is always open to the GoYernment to abolish
posts and such an action is not justiciable under Art. 226 of the
Constitution, as it does not violate any statutory provision.
Held: (per P. B. Gajendragadkar, K. N. Wanchoo, N. Rajagopala Ayyangar and J. R. Mudho!kar, JJ. Subba Rao ). dissenting), (i) Had there been any substantive vacancies, actual
or anticipated, there \Vould have been no occasion to create supernumerary posts.
Therefore, it must follow
that
the order of
Financial
Con1missioner
had
no legal foundation~ there
being
no vacancies in v.rhich the confirmations could take place.
His
order therefore, conhrn1ing the respondents as permanent
Tahsildars must be held to be wholly void.
(ii) The order of the Rajpramukh does not appoint the respondents as perrn;:tnent Tahsildars but only mentions the fact of
the confirn1ation of the respondents and others.
Therefore, the
creation of supernun1erary posts
appears to be an afterthought
an_d is of no avail as a means of validating the origin2l order of
confirmation.
(iii) \Vhen an or<ler is voi<l on the ground that the avthority
which made it had no po\Ver to make it, it cannot give rise to any legal
rights. Where a Government servant has no right to a post or to
a particular status, though an authority under the
(}overnment
acting beyond its competence had purported to give that person
a status which it was not entitled to give, he \vill not in lavv be
deemed to have been validly appointed to the post or given the
particular status.
Therefore, the Government notification "de-confirming" the respondents should be interpreted to mean that the
Government did not accept the validity of the confirmation of
the respondents.
(iv) Even though upon their allocation to the State of Punjab they were sho\vn as confirmed Tahsildars, they could not in
law be regarded as holding that status. Legally their status was
only that of officiating Tahsildars and hence there was no reduction of rank by re.ason merely of correcting an earlier error.
Therefore, Art. 311 ( 2) is not attracted.
·
.
.Cv) Sub-s.(2) of s. 116 of the States Reorganisation Act, 1956
1~ wide enough to empo\.ver the successor Government, \vhich would
lte _the ~ompetent authority under the Act, to make the impugned
11.ot1ficatton.
Per Subba Rao, /.-(i) It cannot be denied that a State can
create supernu1nerary posts if the exigenc?es
of administration
require. It is in substance creation of posts to meet a given situ.
1963
State of Punjab
v.
fagdip Singh
and other.r
966
SUPREME COURT REPORTS
[1964]
1963
ation.
The order of the Rajpramukh in express terms refers to
the earlier order of the Comn1issioner.
It says that the supernuState of Punjab .. merary posts were created to provide liens for the Tahsildars conv.
firmed by the Commissioner's order.
This order, therefore, fills
Jagdip Singh
up the lacuna found in the earlier order and thus validates it.
and others
(ii) Assuming that the order passed by the Rajpramukh could
not be given retrospective effect, the result could not be different.
The Co1nmissioner \Vas admittedly the appointing
authority.
He confirmed
the
respondents,
but
his
order could
not
take effect for want of permanent vacancies. The Government by
creating supernumerary posts made the order effective.
The order
of confirmation \Vas good, and the PEPSU Government could not
have reduced the rank of the said officers duly confirmed except
in the manner prescribed. The Punjab State also could not reduce
their rank except in the manner prescribed by the rules and the
provisions of the Constitution.
(iii) The question that falls to be considered under
Art.
311(2)
is whether the Government servant was dismissed or removed or reduced in rank as punislunent.
It would be punishment if either of two tests \\'as satisfied, namely, if he had a right
to the post or if he had been visited with evil consequences.
If
either of the said two tests was satisfied, he was punished; and if
so, he should be given a . reasonable opportunity of showing cause
against the action proposed to be taken in regard to him.
Purshotam Lal Dhingra v. Union of India, [1958] S.C.R. 828,
referred to.
Devasahayam v. State of Madras, I.L.R. 1958 Mad. 158, held
inapplicable.
(iv)
The respondents had a
right to occupy a substantive
rank in the posts of 1~ahsildars and their reduction as officiating
Tahsildars was certainly reduction in rank as punishment.
Crv1L APPELLATE JuR1sorcTION : Civil Appeal Nos. 290
to 293 of 1962.
Appeals by special leave from the judgment and order
dated November 23, 1959, of the Punjab High Court in
L. P. As. Nos. 358 to 361 of 1959.
S. M. Sikri, Advocate-General for the State of Punjab, ·
GopaJ Singh and R. N. Sachthey, for the appellants.
S. P.
Sinha, Sukhdev Singh Sodhi, S. K. Mehta,
Shahzadi Mohiuddin, and K. L. Metha, for the respondents.
September 19, 1963. The Judgment of P. B. Gajendragadkar, K. N. Wanchoo, N. Rajagopala Ayyangar and
J. R. Mudholkar, JJ. was delivered by Mudholkar J. K.
Subba Rao, J. delivered a dissenting opinion.
J..
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·•
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4 S.C.R.
SUPREME COURT REPORTS
967
MunHOLKAR, J.-These four appeals arise out of four
writ petitions preferred by four persons under Art. 226 of
the Constitution challenging a notification made by the
Government of Punjab on October 31, 1957 "de-confirming" the petitioners from permanent posts of. Tahsildars
and according to them the rank of officiating Tehsildars.
The petitions were heard together and were disposed of
by a common judgment by Mehr Singh J. Appeals preferred against his judgment were dismissed summarily by
a Division Bench of the Punjab High Court. The State
of Punjab has come up before us by special leave against
the decisions in all the four writ petitions and we have
heard the appeals preferred by it together. This judgment
will govern all these appeals.
The respondents were officiating Tahsildars in the
erstwhile State of PEPSU. By notification No. RD/Est. 74
dated October 2~, 1956 made by the Financial Commissioner, seven officiating Tahsildars, including the four
respondents before us, were confirmed as Tahsildars with
immediate effect. No posts were, however, available at
that time in which the respondents could be confirmed.
On October 24, 1956 the Rajpramukh of PEPSU sanctioned the creation of seven supernumerary posts of Tahsildars
to provide liens for the Tahsildars who had been confirmed
under the notification of October 23, 1956. While
sanctioning these posts Rajpramukh ordered that the
supernumerary posts will be reduced as and when permanent vacancies arose and that no pay will be drawn
against these posts. On November 1, 1956 the State of
PEPSU was merged with the State of Punjab by virtue of
the operation of the States Re-organization Act, 1956. On
November 12, 1956 the Deputy Accountant General, Punjab, wr0te to the Financial Commissioner to the Government of Punjab bringing to his notice •he fact that seven
Tahsildars were confirmed by the Fin:u.cial Commissioner
of PEPSU before the creation of supernumerary posts and
suggested reconsideration of the action taken by the Government of PEPSU. On October 12, 1957 the Deputy
Secretary to the Government of Punjab, Revenue Department, addressed the following memorandum to the Commissioner, Patiala Division :
"Memorandum No. 4665-E(V)-57/3587 dated Simla 2,
1963
State of Puniab
v.
Jagdip Singh
11nd others
Mudholkar, J.
1963
State of Punjab
v.
Jagdip Singh
and others
M udh olkar, /.
968
SUPREME COURT REPORTS
[1964J
the 12th October, 1957.
Subject : Absorption
of
Tahsildars . of
erstwhile
Pepsu State. By notification No. RD/Estt.-74, dated the
23rd October, 1956 the erstwhile Pepsu State Government in the Revenue Department confirmed Sarvshri
(1) Malvindar Singh, (2) Balwant Singh, (3) Gurdhiana Singh, ( 4) Jagdip Singh, (5) Rajwant Singh,
(6) Avtar Krishna Bhalla, and (7) Ram Singh as
Tehs1ldars.
As there were no permanent regular
vacancies available in the cadre of Tehsildar at the
time of issuance of the above notification, seven supernumerary posts of Tehsildars were created by a subsequent order vide letter No. RD/18/ (193)-E-56 dated
the 24th October, 1956 of the erstwhile Pepsu State
Government. The position has been examined in the
Revenue Department of the new State Government.
Since the availability of permanent posts should always
precede confirmation and not follow it, and since
supernumerary posts are not, as a rule, created to confirm officiating hands, the procedure adopted by the
late Pepsu Government in confirming the above named
seven Tehsildars was wholly wrong.
In the circumstances, the Governor 0£ Punjab is pleased to order
the cancellation of Notification No. RD/Est.-74, dated
the 23rd October, 1956 regarding conrirmation 0£ 7
Tehsildars and letter No. RD-18(193)£/56, dated the
24th October, 1956 regarding creation of 7 supernumerary posts of Tehsildars. The aforementioned
seven Tehsildars will cm1sequently stand deconfirmed
reverting to their original status as officiating Tehsildars.
2. The Tehsildars concerned may please be informed
accordingly.
•
Sd/ V. P. Gautama
Deputy Secretary, Revenue."
On October 31, 1957 the Government of Punjab made a
notification "de-confirming" the seven Tahsildars who
were confirmed by the Financial Commissioner, PEPSU on
October 23, 1956. What the Government of Punjab evidently meant by "de-confirming" was that the order of
confirmation be treated as cancellecL
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4 S.C.R.
SUPREME COURT REPORTS
969
The respondents challenged before the High Court the
action taken by the Government of Punjab on two
grounds.
111 the first place they said that the action of
the Government amounted to a reduction in rank and,
therefore, it could not be tJken without compliance with
the requirements of Art. 311 (2) of the Constitution. The
second ground was that by virtue of the States re-organization, the respondents who held the status of permanent
Tahsildars in the State of PEPSU could not be deprived
of it by the successor Government. Both the contentions
were accepted by Mehr Singh J .
The learned Advocate-General of Punjab challenges
the view taken by the learned Judge on both the points
and further contends that it is always open to the Government to 3bolish posts and that if the Government abolished the supernumerary posts its action was not justiciable and could not be challenged in a petition under Art.
226.
In view of our conclusion that the respondents were
never validly confirmed in their posts as Tahsildars, no
question of the
validity of the abolition of substantive
posts held by the officers appointed to them could arise,
and we do not therefore propose to deal with the larger
question as to whether and if so, when and how such
action could be challenged in Courts.
It was stated before us by the Advocate-Gerieral that
the Punjab Tahsildari Rules were adopted by the former
State of Patiala and that by virtue of a covenant entered
into among the States which formed the PEPSU union,
laws of Patiala State became the laws of the State of
PEPSU after its coming into being. This position was
not disputed by the respondents' counsel, and so, we are
dealing with these appeals on the basis that at the relevant time, the Patiala laws applied. Rule 6(a) of those
Rules provides that the posts of Tahsildars will be filled
by (1) promotion of naibitahsildars; (2) direct appointment; (3) transfer from among officials employed as
Superintendents of Deputy Commissioners' office or head
vernacular clerks of a Commissioner's or Deputy Commissioner's office or district kanungos of not less than five
years' standing. Rule 7(2) provides that when a substantive vacancy occurs or is about to occur in the post of
62-2 S. C. lndia/64
1963
State of Puniab
v.
/agdip Singh
and others
Mutlholkar, /.
1963
State of Punjab
v.
/agdip Singh
and others
Mudholkar, /.
970
SUPREME COURT REPORTS
[1964]
Tahsildar it shall be filled from among the classes mentioned in r. 6 (a) in such proportions or rotation as the
Government shall by general or special order direct. This
rule thus empowers the Financial Commissioner to make
an appointment of a person to the post of Tahsildar only
when a substantive vacancy occurs or is about to occur in
the post of Tahsildar. Rule 8 deals with the method of
filling officiating vacancies and r. 9 deals with appointments against suspended lien. The present case is not
governed by either of these two rules, and the only rule
which could possibly be invoked for supporting the action
of the Financial Commissioner is r. 7.
Before, however,
advantage could be taken of that rule, there had to be an
actual or an anticipated substantive vacancy. Moreover,
there is no rule which empowers the Finan€ial Commissioner to create a post of Tahsiklar. It is admitted before
us that there was neither a substantive vacancy nor an
anticipated vacancy in the cadre of permanent Tahsildars
on October 23, 1956.
Indeed, this is clear from the fact
that for providing for lien for the seven Tahsildars who were
confirmed by the Financial Commissioner on October 23,
1956, the Rajpramukh realised that new posts had to be
created and, therefore, created seven supernumerary posts
the very next day. Had there been any substantive vacancies, actual or anticipated, there would have been no occasion to create supernumerary posts. In the circumstances,
therefore, only one conclusion must follow and that is that
order of the Financial Commissioner had no legal foundation, there being no vacancies in which the confirmations
could take place. The order of the Financial Commissioner dated October 23, 1956 confirming the respondents
as permanent Tahsildars must, therefore, be held to be
wholly void.
It was, however, argued before us that the order of
the Rajpramukh dated October 24, 1956 and the order of
the Financial Commissioner dated October 23, 1956 should
be read as complementqry to each other and that though
th~ confirmation of the respondents preceded the creation
of supernumerary posts we should infer that the Government of PEPSU intended that the respondents should be
confirmed in accordance with law. No such ground has
been urged in the petition and we have no material before
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4 S.C.R.
SUPREME COURT REPORTS
971
us from which we could infer that the proposal to create
supernumerary posts and the one to confirm the seven
Tahsildars were being considered simultaneously, though
by two different authorities. Apart from that, they are
not in the proper sequenc~ and cannot, therefore, be read
as complementary.
Futher, we cannot read the two
orders as parts of the same transaction because they have
emanated from different authorities. It must be borne in
mind that the power to create posts rests in the State. The
Tahsildari Rules have not delegated to the Financial
Commissioner, the
appointing authority, the power to
create the posts of Tahsildars. Nor again, can we read
the order of the Rajpramukh of October 24, 1956 as appointing the respondents as permanent Tahsildars, as that
order does not purport to do any such thing. In fact it
clearly mentions the fact of the confirmation of the respondents and others. On the face of it, therefore .. the
creation of supernumerary posts appears to be an afterthought arnl is of no avail as a means of validating the
original order of confirmation.
The question then is as to the effect of a void order
of confirmation. When an order is void on the ground
that the authority which made it had no power to make
it cannot give rise to any legal rights, and as suggested
by the learned Advocate-General, any person could have
challenged the status of the respondents as Tahsildars by
instituting proceedings for the issue of a writ of quo warranto under Art. 226 of the Constitution. Had such proceedings been taken it would not have been possible for
the respondents to justify their status as permanent Tahsildars and the High Court would have issued a writ of
quo warranto depriving the respondents of their status as
permanent Tahsildars.
Now, where the Government itself realizes that an order made by an authority under the
Government is void, is it powerless to do anything in the
matter?
Is it bound to give effect to a void order and
t~eat as confirmed Tahsildars persons who have no legal
nght to be treated as
confirmed Tahsildars?
Is it not
open to the Government to treat the confirmation as void
and notify the persons affected and the public in general
of the f~ct ~f its having done so by issuing a notification
of the kmd 1t made on October 31, 1957? In our opinion
1963
State of Puniah
v.
fagdip Singh
and others
Mudholkar, f.
'
1963
State of Punjab
v.
fagdip Singh
and others
Mudho/k.,., f.
972
SUPREME COURT REPORTS
(1964]
where a Government servant has no right to a post or to
a particular status, though an authority under the Government acting beyond its competence had purported to give
that person a status which it was not entitled to give he
will not in law be deemed to have been validly appointed
to the post or given the particular status. No doubt, the
Government has used the expression "de-confirming" in
its notification which may be susceptible of the meaning that it purported to undo an act which was therefore
valid. We must, however, interpret the expression in the
light of actual facts which !eel up to the notification.
These facts clearly show that the so-called confirmation by
the Financial Commissioner of PEPSU was no confirmation at all and was thus invalid. In view of this, the
notification of October 31, 1957 could be interpreted tfl
mean that tl1e Government did not accept the validity of
the confirmation of the respondents and other persons who
were confirmed as Tahsildars by the Financial Commis--
sioner, PEPSU.
It was next contended that the respondents we~e in
fact confirmed Tahsildars of the State of Punjab on November 1, 1956, having lien on their posts and that by virtue of the Government notification de-confirming them
they have become merely officiating Tahsildars, thus having lien on! y on the post of naib-Tahsildars. This, it was
said, amounted to a reduction in rank and further that
it affected their seniority vis-a-vis other Tahsilclars and
prejudiced their future promotion. Relying upon the decision of this Court in Parshotam Lal Dhingra v. Union of
India(') it is contended that their reduction in rank must
be held to be by way of punishment and that consequently
without recourse to the procedure indicated in Art. 311 (2),
this could not be clone. On the other hand the Advocat:eGeneral, Punjab, contends that tlie action of the Government in issuing the notification does not operate as a
punishment and that, therefore, Art. 311 (2) is not attracted. We have already held that the respondents could
not be validly confirmed as Tahsilclars by the Financial
Commissioner of PEPSU. Therefore, even though upon
their allocati~n to the State of Punjab as from Novem-
(1) [1958]
S.C.R. 828.
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r--->
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'
4 S.C.R.
SUPREME COURT REPORTS
973
ber I, 1956,
they were shown as
confirmed Tahsildars,
they could not in law be regarded as holding that status.
Legally their status was only that of officiating Tahsildars.
The notification in question in effect recognises only this
as their status and cannot be said to have the effect of
reducing them in rank by reason merely of correcting an
earlier error. Article 311 (2) does not, therefore, come
into the picture at all.
The learned Advocate-General of Punjab contended
that for the application of Art. 311 (2) not only should
the reduction in rank be by way of punishment but also
that the action taken by the Government should be on a
ground personal to the officer concerned. In other words,
the submission was that the punishment must be for misconduct. In support of this view, he has relied upon the
decision of a single Judge of the Madras High Court in
N. Devasahayam v. The State of Madras (1) which was
affirmed by the Division Bench of that Court in appeal
under Letters Patent. That decision is
reported in the
same volume at p. %8. In that case the question was
whether loss of senioritv which "sults from re-adjustment
an«I re-fixing of seniority inter se between certain officers
in tile service would amount to a reduction in rank so as
to attract the application of Art. 311 (2). This contention was rejected both by the learned single J t1dge and
the Division Bench for the reason that the reduction in
rank contemplated by Art. 311(2) was one by way of
punishment, which in its turn implied some conduct on
the part of the officer which led to the reduction. Prima
facie this view appears to be correct and to accord with
the effect of the decision of this Court in Dhingra's case(').
However, in the present appeals we are not called upon
to express a definite opinion on this aspect of the matter.
It was contenclecl on behalf of the respondents that
the Punjab Government was incompetent to rectify a mistake made by the Government of PEPSU or the Financial
Commissioner of PEPSU. The answer to this is to be
found in s. 116 of the States Re-organization Act, 1956.
Sub-section ( 1) thereof deals with the continuance of an
offi_cer in the same post. Sub-section (2), however, pro-
(1) l.L.R. [1958] Mad. 158.
(2) [1958] S.C.R. 828.
1963
State of Punjab
v.
fagdip Singh
and others
Jfadholkir, /.
1963
State of Punjab
v.
fagdip Singh
and others
Mudholkar, f.
Subba Rao, /.
974
SUPREME COURT REPORTS
[1964J
vides that nothing in the section shall be deemed to prevent a competent authority after the appointed day from
passing in relation to any such person any order affecting
his continuance in such post or office. This provision is
thns wide enough to empower the successor Government,
which would be the competent authority under the Act,
to make the kind of notification with which we are concerned in this case.
For all these reasons we hold that the High Court was
in error in granting the writ petition to the respondents.
We, therefore, set aside its judgment and dismiss the writ
petitions. In the circumstances of the case we direct costs
throughout to be borne as incurred.
SuBBA RAo, J.-I have had the advantage of perusing
the judgment prepared by my learned brother Mudholkar
J. I regret my inability to agree.
The facts lie in a small compass. In the year 1944,
the four respondents were appointed as naib-Tahsildars in
the State of Patiala. Presumably after they passed the
prescribed tests and their work was found satisfactory, in
the year 1949 they were appointed to officiate as Tahsildars
by the Pepsu Government. On October 23, 1956, after
they had put in a service of about 8 years as Tahsildars,
they were confirmed with immediate effect as Tahsildars.
The merger of the State of Pepsu and the State of Punjab took place on November 1, 1956. From that date,
under the provisions of the States Re-organization Act,
1956, the respondents became the servants of the Punjab
State. In November 1957, the respondents were informed
that they were "de-confirmed" and reverted to their original status as officiating Tahsildars. The respondents
filed petitions under Art. 226 of the Constitution in the
High Court of Punjab at Chandigarh, for quashing the
said order and notification reverting them to the rank of
officiating Tahsildars.
The High Court held that the
order of the Pepsu Government confirming the respondents
as permanent Tahsildars was binding on the Government
of the State of Punjab and that it had no power to reduce
their rank without complying with the provisions of Art.
311(2) of the Constitution. In that view, the High Court
issued writs of certiorari for the relief prayed for. Hence
the appeals.
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4 S.C.R.
SUPREME COURT REPORTS
975
The learned Advocate-General of Punjab raises before
us the following three contentions : (1) The order made
by the Pepsu Government confirming the respondents was
in total disregard of the Punjab Tahsildari Rules, and
therefore, the successor Government was wdl within its
rights to rectify the mistake committed by the predecessor
Government.
(2) Article 311 of the Constitution has no
application in a case where the Government reduces the
rank of a Government servant without any reference to
his conduct hut only for the reason that the previous
order was contrary to the rules. And (3) assuming that
the earlier order was good, it is always open to the Government to abolish the posts and such an action is not justiciable under Art. 226 of the Constitution, as it does not violate any statutory provision.
As I am holding in favour of the respondents on the
first two points, it is not necessary to express my view on
the third point.
The first question turns upon the validity of the orders
may by the Pepsu Government confirming the respondents
as Tahsildars. As the argument turns upon the relevant
orders, it would he convenient to read the material parts
of the said orders:
Notific1tion No. RD/Est.-74 dated the 23rd October, 1956.
The following officiating Tahsildars are confirmed
witli immediate effect:
(The names of the respondents and others are given.)
~
~ .................. .
Financial Commissioner.
Letter from 11\e D,·puty Secretary to Government to the
Commissioner, Pepsu, Patia/a, dated the 24th October, 1956.
RD 18(193) F:/56.
To
Sir,
The Commissioner,
Pepsu, Patiala.
. I am directed to comey sanction of His Highness the
Ra1pramukh to the creation of seven supernumerary posts of
Tahsildars 111 the pay scale 270-420 to provide liens for
the following Tahsildars who have been confirmed under
Notification No. 71, dated the 23rd October, 1956.
1963
State of Punjab
v.
/agdip Singh
t1nd others
Subba Rao, /.
1963
State of Punj•b
v.
/agdip Singh
and others
Subba Rao, /.
976
SUPREME COURT REPORTS
[1964]
(The names of the respondents and others are given.)
These supernumerary posts will be reduced as and when
permanent vacancies arise. No pay can be drawn against
these posts.
Sd. R. S. Kang,
Deputy Secretary to Government.
A copy of this letter was sent to the Finance Department. Rule 7 (2) ·of the Punjab Tahsildari Rules reads :
"When a substantive vacancy occurs or is about to occur
in the post of tahsildar it shall be filled from among the
classes mentioned in rule 6(a) in such proportions or
rotation as the local Government shall by general or
special order direct. The promotion of naib-tahsildars
employed in foreign service will be regulated on the
principle laid down in Fundamental Rule 113."
Rule 6(a) says that posts in the service shall be filled up in
the case of Tahsildars, inter alia, by promotion of naihTahsildars. I am assuming that similar rules were in vogue
in the Pepsu State. It is contended that on October 23, 1956,
when the Financial Commissioner confirmed the officiating
Tahsildars there were no corresponding substantive vacancies in the posts of Tahsildars and, therefore, the
appointments were void. The subsequent creation of supernumerary posts by the Government, the argument proceeds,
did not have retrospective effect and that, as the Finance
Commissioner did not purport to make a fresh order of confirmation after the creation of the said supernumerary posts,
the respondents did not get any title to their posts. This
argument, if I may say so, runs in the teeth of the clear intention of the appropriate authorities that made the said orders,
and asks us to construe the said orders as provisions of a statue instead of putting a reasonable construction on the said
orders to effecuate the real intention of the makers of the
orders. It cannot be
deni~d that a State can create
supernumerary posts
if the
exigencies of
administration require. It is in substance creation of posts
to meet a given situation.
It is a wellknown "device
adopted by the
executive for confirming its servants if
the number
of permanent posts
exceed
the
sanctioned strength of the cadre. Therefore, if the order dated
October 24, 1956 was made either on October, 23, 1956 or
earlier, it would be impossible to contend that the order of
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4 S.C.R.
SUPREME COURT REPORTS
977
confirmation made on October 23, 1956 was bad. But what
prevents the Government in order to get over a technical
difficulty to make an order creating supernumerary posts
to take effect earlier than that on which the said order was
made; Indeed the said order in express terms refers to the
earlier order of the Commissioner. It says that the supernumerary po,,ts were created to provide liens for the Tahsilda:s
confirmed on October 23, 1956. This order, therefore, fills up
the lacuna found in the earlier order and thus validates it.
Assuming that the order passed by the Government on
October 23, 1956, could not be given retrospective effect, the
result could not be different. The order of the Commissioner
would take effect from October 24, 1956. The Commissioner
was admittedly the appointing authority. He confirmed the
re1pondents, but his order could not take effect for want of
permanent vacancies. The Government by creating supernumerary posts made the order effective. In one view the order
would take effect from October 23, 1956 and in another view,
it would take effect from October 24, 1956: in either view it
was a valid order. I, therefore, agree with the High Court
that the order of confirmation was good, and that the Pepm
Government could not have reduced the rank of the said
officers duly confirmed except in the manner prescribed.
After the States Re-organization Act, 1956, the said respondents became the servants of the Punjab State. The Punjab
State also could not reduce their rank except in the manner
prescribed by the rules and the provisions of the Constitution.
The second argument turns upon the construction of
Art. 311 (2) of the Constitution. It reads:
"No such person as aforesaid shall be dismissed or
removed or reduced in rank until he has been given a
reasonable opportunity of showing cause against the action
proposed to be taken in regard to him."
In the present case, if the order of the Government stands,
the respondents were certainly reduced in rank, for before
the order they were permanent Tahsildars, but after the order
they become officiating Tahsildars with liens on their subst~ntive posts of naib-tahsildus. Their future prospects for
promotion were affected, for other officers in the State
Punjab, who would have been juniors to them, must now,
ilier the said order, have taken precedence over them. A
plain reading of the Article certainly entitles the respondents
1963
State of Punjab
v.
fagdip Singh
and oth~rs
Subba Rao, f.
1963
Stat< of Puniab
v,
J~gdip Singh
and others
Subba Rao, ].
978
' SUPREME· COURT REPORTS
[1964}
to have :t reasonable opportunity of showing cause before
being reduced ·in rank. But the learned Advocate-General
contends that for the application of the said clause of the
Article the punishment of ;eduction ih rank should be in the
'context of the Government servant's conduct and. where, as
in the present case, an order is made dehors 1iis -conduct and
only for. 'Correcting .an alleged error, committed by the
previous Government, the said clause has no application. I
find it difficult to accept this argument. If these arguments
were correct, it. would lead to an extraordinary result,
namely, that a Government servant who had been guilty of
misconduct would" be entitled to reasonable opportUnity
whereas an honest Government servant could be reduced in
rank contrary to the provisions of the statutory service rules
without giving him such an opportunity. This anomaly is
, not created by Art. 311 (2), for the words used. therein are
wide ,enough to take in both categories, but by introducing
word.s of qualification,.in the Article which are not there.
Conduct of a party is certainly relevant to punishment.
Ordinarily punishment is meted otit for misconduct. If there
was no.misconduct, there could not be a punishment. Punishment is, therefore, correlated to misconduct both in its positive and negative as~ects; that is to say, punishment could
be sustained if there was misconduct and could not be
meted out if there was no misconduct. The reasonableopj,ortunity given to a-Government servant enables him to
,establish that he does not deserve the punishment because he
has not been guilty of misconduct. It is no doubt open to the
Government to .establish that the reduction of rank is not
a ·punishment because the said· Government servant has no
right to a substantive. rank and no evil consequences have
flown from the reduction. If those two facts were established,
Art. 311 wpl.jld i;iot apply, not because the pl)nishment was
not related to the conduct of the Government servant, but
becaus~ it was not a punishment.; The only question releval)t,,
therefore, under Art. 3Jl(2) is whether ·reduction \n rank in
a particular· case is punishment qr not. If that is punishment,
the· Government, in my view, obviously cannot take advantage of·~he fact that the pi,mishment h,as been illegally meted
out to him though he h!t~ f.lOt been guilty of any miscondl\ct.·
't\lis·, Court, in Parshotam, I.,al Dhingra v. The. Union .ot,
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4 S.C.R.
SUPREME COURT REPORTS
979
India('), has finally and authoritatively decided this point.
On the qnestion of criteria to be applied to ascertain whether
an order of the Government amounts to punishment or not,
Das C. J ., speaking for the Court summarized his conclusions
therein. The learned Chief Justice dealing in particular with
a case of reduction in rank observed, at p. 863:
"A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the
verv reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges
of that rank."
Finally, he proceeded to observe, at p. 863:
"In spite of the use of
innocuous
expressions the
court has to apply the two tests mentioned above,
namely, ( 1) whether the servant had a right to the post
or the rank or (2) whether he has been visited with
evil consequences or the kind hereinbefore referred to.
If the case satisfies either of th.e two tests then it must
be held that the servant has been punished and the
termination of his service must be taken as a dismissal
ur removal from service or the reversion to his substantive rank must he regarded as a reduction in rank
and if the requirements of the rules and Art. 311, which
give protection to GovernlT\.ent servant have not been
complied with, the termination of the service or the
reduction in rank must be held to be wrongful and in
violation of the constitutional right of the servant."
This decision, in my view, is a clear authority on the interpretation of Art. 311(2) of the Constitution.
The question
that falls to be considered under that Article is whether the
Government servant was dismissed or removed or reduced
in rank as punishment. It would be punishment if either of
the said two tests was satisfied, namely, if he had a right to
the post or if he had heen visited with evil consequences of
the kind mentioned in the ahovementioned judgment. If
eithe'. of the said two tests was satisfied, he was punished;
and 1f so, he should be given a reasonable opportunity of
showing cause against the action proposed to be taken in
regard to him. The argument of the learned Advocate-
-~~eral is ~nt:mble for three reasons. By accepting it, (i)
(') r 1958 j s.c~R:-828~
1963
State of Punjab
v.
fagdip Singh
and others
Sttbba Rao, f.
1963
State of Punj•b
v.
fagdip Singh
and others
Subba Rao, /.
980
SUPREME COURT REPORTS
[1%4]
we would be adding a third test, (ii) we would be introducting an anomaly viz., a servant guilty of misconduct gets a
preferential treatment, and (iii) we would be confusing the
reason for punishment with punishment itself.
Strong reliance is placed upon the judgment of a Divis10n Bench of the Madras High Court in Devasahayam v.
The State of Madras ( 1 )
in respect of · the contention
that unless
a reduction of rank is
connected
with
the
misconduct
of
a
Government
servant,
Art. 311
of the
Constitution cannot
be
invoked.
In that case, the appellant as well as certain others was
appointed by the Government of Madras as Assistant Commandant, Special Armed Police, Madras, in 1948 during the
Hyderabad Action. When normal conditions were restored,
the Government passed an order in and by which it appointed the appellant and others who had been serving in the
Special Armed Police, Madras, in posts in the Madras Police
Service. In that order the appellant was shown as first in the
list. After a lapse of more than 5 years, the Government of
Madras passed another order fixing the seniority of the
Deputy Superintendent of Police in a different way. The
question raised in that case was whether the changes made
in the seniority list affecting the appellant adversely was
reduction of rank within the meaning of Art. 311 (2) of the
Constitution and whether, flS no reasonable opportunity was
given to the affected parties within the meaning of that
Article, the said second order was bad. The Court found that
the refixation of .m1iority on what the Government considered to be just and equitable grounds was a matter of policy and
was well within its powers. On that finding the question
arose where Art. 311 (2) of the Constitntion would apply to
that case. The learned judges, after considering the
decisions of this Court, held that Art.