# GIAN SINGH v. THE 8TATE OF PUNJAB

- **Citation:** [1962] 3 S.C.R. 515
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** P. B. Gajendragadkar, K. Subba Rao, M. HrnAYATULLAH, J. C. Shah, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gian-singh-v-the-8tate-of-punjab-2458
- **Pages:** 32

## Headnote

5115
Public Servant-T•h•ildar in Punjab--R•flV>f!fJl /roM
servict-Financial Oommis&ioner, if competent to rttnotJt-Pu1tjab
Land R•venue Act, 1887, 8,9,-Punjab Teh•ildari Rulei, 1932floi:ernmrnt of India Act, 1935 ( 25 & 26 Ged. 5 ch,42) •· 241Go1Jfrnment of India (Co nmencement and Tran&itory Proviaion~)
Vrd.r, 1936 cl. 15 (2)-Adaptation of Indian Laws Order, 1937.
The Punjab Tehsildari Rules, 1932, were framed under
s. 9 of the P.rnjab Land Revenue Act, 1837, by the Financial Commissioner.
They
conferred authority
upon the
Financial Commissioner to appoint and to rernove Tehsila
d:ir~ from service. Aftt:r the enactment of the Government
of India Act, 1935, '· 9 was amended by the Adaptation of
Indian laws Order, 1937, and the pfJwer of the Financial
Commissioni:-r to make such
rules
was abrogated.
The
appellant,
who was
a
Tehsildar, was
dismissed by the
Financial Commissioner in 1953. The appellant contended
that the Financial
Commissioner
was not
competent to
remove him
from service as
his p')wers to make
rule'
regarding appointment and rrmoval from se1vice ofTehsildars
were abrogated and the Tehsildari RHles lost their vitality
a• they .were not preserved by the Government of In.d ia Act,
1935, or by the Adaptation 01 der.
Hfld, (per
Gajendragadkar, Subba Rao, Hidayatullah
and Shah,JJ., Dayal, J., contra.) that notwithstanding the
abrogation of the powers of the Financial Commissioner to
frame rules, the "fehsildari rules, 1932 continued in force and
the Financial
Commissioner was competent
to re-move
the appellant from Service.
By the combined operation of
cl. 15 (2) of the Government of India (Commencement and
Tran .itory Provisions Order, 1936, and the Adaptation Order,
1937, the condition of service app 1icab1e to civil servants re··
mained unaltered, until other provisions were made under the
Government of India Act, 1935. !"hough s. 241 of the Govern-
~ ment of India Act, 1935 provided that the conditions of service
.. of persons serving in connection with the affairs of a province,
were to be such a~ may be prescribed by rules made
by the
Governor, or by persons authorised by him, s. 241 was itself
Subject to cl. 15(2) of the 1936 Order.
It was not shown that
1961
lfMJ
Gia11 Sinth
v.
Th, Statt of
Pun1al>
SW].
11
516 '
SUPREME COURT REPORTS
(1962J
th'Se rules were superseded or abrogated by the Civil Service
Rules made by the Government of Punjab in 1941.
Per, Dayal, J.-The Financial Comn1issioncr was not the
competent authority to remove the appellant from service.
Section HI (IJ wh;ch provided that the Governor would be
the appointing and consequently the dismissing authority
for all civil servants in the service of the Province abrogated
the Tesildari Rules which \\'ere inconsistent
with it and
cl. 15 (2) of the Transitory Order,
19%, did not save them.
Even if rl. 15 (2) preserved these Rules, the reference to the
Financial Commissioner th.rein had to be read as
reference to the Governor in view of para. i of the Adaptation
Order.
The Civil Service
Rules framed by the Government in 1941 governed the conditions of service of Teh•ildars
and Naib Tehsildars and the Tehsildari Rules ceased to be operative from 1941 even if they continued to be effective till then in
vie\\• of the provisions of the Transitory Order.
From April I,
1953, the Punjab Civil Service Rules,
1953, were in foree
which applied to the case and the Financial Commission"
\¥as not sho\vn to be one of the authorities
prescrib~d by the
Government in the rules regulating the appointment and
conditions of service of Tehs;ldars and Naih Teh•ildan.
C1nL APPELLATE JumsmcTroN : Civil Appeal
~o. 515 of 1960.
Appeal from the judgment and order dated
Septcm her 3, 1958, of tho Punjab High Court in
Letter8 Patent A ppcal No. 82 of J9ij7.
lihagat Singh Chau:lri ancl K. R. Choudhri, for
the appellant.
S. M. Sikri, Aduowte-Geneml for the State of
Punjab,
Gop~l Singl1 and P. n. Menon, for the
rcilpondcnts.
HHi I. Dcccm her 11. The .Judgment of Gajondragadknr. Subb

## Text

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-
-
•
3 :i.O.R..
SUPREME COURT REPORTS
GIAN SINGH
v.
THE 8TATE OF PUNJAB
(P. B. GAJENDRAGADKAR, K. SUBBA RAO,
M. HrnAYATULLAH, J. C. SHAH and
RAGHUBAR DAYAL, JJ.)
5115
Public Servant-T•h•ildar in Punjab--R•flV>f!fJl /roM
servict-Financial Oommis&ioner, if competent to rttnotJt-Pu1tjab
Land R•venue Act, 1887, 8,9,-Punjab Teh•ildari Rulei, 1932floi:ernmrnt of India Act, 1935 ( 25 & 26 Ged. 5 ch,42) •· 241Go1Jfrnment of India (Co nmencement and Tran&itory Proviaion~)
Vrd.r, 1936 cl. 15 (2)-Adaptation of Indian Laws Order, 1937.
The Punjab Tehsildari Rules, 1932, were framed under
s. 9 of the P.rnjab Land Revenue Act, 1837, by the Financial Commissioner.
They
conferred authority
upon the
Financial Commissioner to appoint and to rernove Tehsila
d:ir~ from service. Aftt:r the enactment of the Government
of India Act, 1935, '· 9 was amended by the Adaptation of
Indian laws Order, 1937, and the pfJwer of the Financial
Commissioni:-r to make such
rules
was abrogated.
The
appellant,
who was
a
Tehsildar, was
dismissed by the
Financial Commissioner in 1953. The appellant contended
that the Financial
Commissioner
was not
competent to
remove him
from service as
his p')wers to make
rule'
regarding appointment and rrmoval from se1vice ofTehsildars
were abrogated and the Tehsildari RHles lost their vitality
a• they .were not preserved by the Government of In.d ia Act,
1935, or by the Adaptation 01 der.
Hfld, (per
Gajendragadkar, Subba Rao, Hidayatullah
and Shah,JJ., Dayal, J., contra.) that notwithstanding the
abrogation of the powers of the Financial Commissioner to
frame rules, the "fehsildari rules, 1932 continued in force and
the Financial
Commissioner was competent
to re-move
the appellant from Service.
By the combined operation of
cl. 15 (2) of the Government of India (Commencement and
Tran .itory Provisions Order, 1936, and the Adaptation Order,
1937, the condition of service app 1icab1e to civil servants re··
mained unaltered, until other provisions were made under the
Government of India Act, 1935. !"hough s. 241 of the Govern-
~ ment of India Act, 1935 provided that the conditions of service
.. of persons serving in connection with the affairs of a province,
were to be such a~ may be prescribed by rules made
by the
Governor, or by persons authorised by him, s. 241 was itself
Subject to cl. 15(2) of the 1936 Order.
It was not shown that
1961
lfMJ
Gia11 Sinth
v.
Th, Statt of
Pun1al>
SW].
11
516 '
SUPREME COURT REPORTS
(1962J
th'Se rules were superseded or abrogated by the Civil Service
Rules made by the Government of Punjab in 1941.
Per, Dayal, J.-The Financial Comn1issioncr was not the
competent authority to remove the appellant from service.
Section HI (IJ wh;ch provided that the Governor would be
the appointing and consequently the dismissing authority
for all civil servants in the service of the Province abrogated
the Tesildari Rules which \\'ere inconsistent
with it and
cl. 15 (2) of the Transitory Order,
19%, did not save them.
Even if rl. 15 (2) preserved these Rules, the reference to the
Financial Commissioner th.rein had to be read as
reference to the Governor in view of para. i of the Adaptation
Order.
The Civil Service
Rules framed by the Government in 1941 governed the conditions of service of Teh•ildars
and Naib Tehsildars and the Tehsildari Rules ceased to be operative from 1941 even if they continued to be effective till then in
vie\\• of the provisions of the Transitory Order.
From April I,
1953, the Punjab Civil Service Rules,
1953, were in foree
which applied to the case and the Financial Commission"
\¥as not sho\vn to be one of the authorities
prescrib~d by the
Government in the rules regulating the appointment and
conditions of service of Tehs;ldars and Naih Teh•ildan.
C1nL APPELLATE JumsmcTroN : Civil Appeal
~o. 515 of 1960.
Appeal from the judgment and order dated
Septcm her 3, 1958, of tho Punjab High Court in
Letter8 Patent A ppcal No. 82 of J9ij7.
lihagat Singh Chau:lri ancl K. R. Choudhri, for
the appellant.
S. M. Sikri, Aduowte-Geneml for the State of
Punjab,
Gop~l Singl1 and P. n. Menon, for the
rcilpondcnts.
HHi I. Dcccm her 11. The .Judgment of Gajondragadknr. Subba Rao, Hiclayatullah and Shah, JJ.,
was dcliverf'd by
)>,.
-
..
SHAH, .J.-Sardar Gian Singh-hereinafter
Called the appellant-was recruited in I 92i as a
Naib Tehsildar m the Revenue department of the
.._
Province of Punjab. He was confirmed in that • ··
rank m l!l39.
In l!l46, he was promoted to the
rank of officiating Tehiildar and was posted as
-
3 S.C.R.
SUPREME COURT REPORTS
517
Tehsildar at Hansi in the district of Hissar on
September 22, 1947, and since then he held the post
of Tehsildar at diverse places.
On August 20, 1952, the appellant was served
with a charge sheet by the Financial Commissioner,
Punjab containing eleven heads of charges of
misappropriation, misconduct, irregularities and
dereliction of duties committed by him. The Deputy
Commissioner, Hissar was appointed to hold a
departmental enquiry into those charges.
On
August 28, 1953, the n,ppellant was served with a
notice to show cause why on the findings recorded
by the enquiry officer, he should not be dismissed
from service. The appellant submitted his explanation. The Financial Commissioner by order dated
October 26, 1953 ordered that the appellant be
dismissed from service. An appeal preferred against
that order was dismissed and application to the
Government of Punjab to revise the order of the
appellate authority also proved infructuous. The
appellant then presented a petition under Art. 226
of the Constitution to the High Court of Punjab
for an order quashing the order of dismissal contending inter alia that (a) reasonable opportunity
was not given to the appellant either before the
enquiry officer or before the Financial Commissioner
to rebut the allegations contained in the charge
sheet, and (b) that the Financial Commissioner was
incompetent to pass the order of dismissal.
Bishan
Na.rain, J., who heard the petition rejected the first
plea, but in the view of the learned Judge, the
Financial Commissioner ceased to have any power
to make rnles regnlating the appointment and dismissal of Tehsildars because of the amendment of
the Punjab Land Hevenue Act, 1887 by the Government of India (Adaptation of Indian Lawe) Order,
1937 and the authority derived by the Financial
Commissioner under those rules to dismiss Tehsildars
was also abrogated, and therefore the order of the
Financial Commissioner dated October 26, 1953
was void and of no effect. In appeal under cl. 10
1961
Gian Sinlh
v.
Tltt State of Punjab
Shah].
J9~1
Gian Si•ith
y,
Tiu Stutr of p,,,,jtzb
Shoh J.
518
SUPRE.\IE COlJRT REPORTS
(1962]
of th•· Letters Pat.mt, a Division .B<·nch of the
High nuurt reversed the order passed hy the Rishan
~arnin, .J. Th<' High Court hclcl th~,t. by virtue of
els. 9 anrl l 0 of tlw Gowrnment of India (Adaptation
of Indian Laws) Order', l!J37, the rules framed under
the Punjab Land lt('venuc Act, 1887 continued
to remain in op<,ration even after the Act was
amond,,<l hy the Adaptation of Indian Laws Order,
1937 and the Financial Commiosiun .. r rem:dned
inveHt<·d with tlw power to dismiHs th<, appellant
from sn\•ice. Th" High Court accordingly dismissed
the potition of the' :ippellant.
The appellant h:ui
appt!aled tu this Conrt against the order of tho
High Court, with <'crtificates
of
fitnrs~ under
Art. 133 of the Constitution.
Section 9 of the Punjab Land
I~ev<•nuo
Act, 1887, as it wa.;r originally enacted, stood a.s
follows :
"The Provincial Government "hall fix: the
number of Tehsildars and Naib Tchsildars to
be <Lppoint<-cl, and the Financial Commis~ioncr
may make ruli·s for thnir appointment and
dismiHsal".
Under s. 9 read with R. 28 oft.he Act, rules Wl'rc
framed in 1932 bv the Financial Commi&~ionrr
Punj:ib, and authority to appoint Tehsildars and
to remove them from ttervico w.·1s, by these rulee,
oonfcrr"d upon thn Financial CommisHioner.
After
the enactment of the Govcrnmont of India Act, 1935,
s. 9 of the Pwijab Land Revenue Act was amended
by the Adaptation of Indian Laws Order, 19a7, and
the power of the Financial CommiHsioncr to mako
rules under B. 9 was abrogated by t lw deletion of
the- words in that section following the
word
"appointed".
&,ction 28 which authorised the
Financial CommisHioner to make rules to rcgulato
appointments, duties, l'molumcntfi, μuniHhmcnt<i etc.
of officers amouget others of Kanungos, Zaildars,
Inamda.rs and village officers, wa.s also a.mended
... ,. , ..
....
..
-
I
3 S.C.R.
SUPREME COURT REPORTS
519
and that power was entrusted to the Provincial
Government. Undoubtedly, by the amendment of
s. 9, the Financial Commissioner was deprived of
the power to make rules for appointment and
removal of Tehsildars and Naib Tehsildars, and on
account of the repeal, except as to transactions past
and completed, the power may in the absence of a
provision to the contrary, be considered as if it
had never existed. But the vitality of the Tebsildari
Rules and of the powers of the authorities competent
thereunder after the Government of India Act, 1935
was enacted, rested upon certain provisions made
by virtue of the authority conferred by that Act.
By s.310 of the Act, to facilitate the transition from
the Government of India Act, 1915 and from the
provisions of Part XIII of the Act of 193fi to the
provisions of Part II, power was conferred upon
His Majesty, by Order-in-Council among others to
direct that the provisions of the Government of
India Act, 1935, shall, during such limited period as
may be specified in the order, have effect subject
to such adaptations and modifications as may be so
specified. In exercise of this power, on July 3, 1936,
the Government of Indirt (Commencement and
Transitory Provisions) Order, 193G was promulgated
and by cl. 15(2) it was provided:
"Uutil other provision is made under the
new Act, the conditions of service applicable
to any person or any class of persons appointed or to be appointed to serve His Majesty
in a civil capacity in fodia shall be the same
as were applicable to that person or, as the
case may be, to persons of that class immediately before the commencement of Part III
of the new Act."
By cl. l2(d) of the Adaptation of Indian Laws
:i
Order, 193 i issued in exercise of authority granted
~,
by s. 293, it wa~ provided, in so far as it is material,
that:
1961
Gian Singh
v.
The State of Punj.si
Sh•h ].
/ l'
1961
GimSinth
v.
Thi State of Punjab,
Shah ].
, ,
---~-----
- / -
I
j
'·
520
SUPRE~IE OOURT REPORTS
(1962)
"No repeal effected by this order shall
affect the operation of sub-paragraph (2) of
·paragraph fifteen of the Government of India
(Commencement and Transitory Provisions)
Order, 1936."
· By the comblned operation of cl. 15(2) of the
' Commencement. and Transitory Provisions Order,
. 1936 and. the . Ada.ptation of Indian Laws Order,
,· 1937, the conditions ·.of service applicable to civil
servants continued to<remain unaltered, until other
: ·provisions were made under the Government of
India Act, 1935. Again, the Adaptation of Indian
.Laws Order, 1937 expressJy·provided by-01. 9 that
. the rules framed under the Act-adapted or modi-
. fied-shall not be rendered invalid. -By that clause
which provided :
-
"The provisions of this order whiCh adapt
or modify Indian laws so as to· alter the
manner in ·which, the authority by which,
or• the law under or in accordance with
which, any powers are· exercisable, shall ·not
· render-· invalid · any
notification, · order,
commitment; attachment, bye-law, rule or
regulation duly ·made or issued, or anything
duly done,·before the commencement 'of ·this
order; ... ·~~················~·····4·····''
Notwithstanding the abrogation of the powers of
the Financial Commissioner ·to frame rules, the
Tehsildari Rules,_1932 remained in force.
· Ancl by cl. 10 which provided:
~'Save as provided by this order, all
·powers 'which under any law in force in
·British 1India, or in any part of British India,
were immediately before the commencement
. of part III of the Government of India Act,
' 1935 vested in, or exercisable by, any person
or authority shall continue to be so vested or
\";
exercisable until other provision is made by
;i S.C.R, SUPREME COURT REPORTS
521
some legislature or authority empowered to
regulate the matter in question."
The authority of the Financial Commis_sioner under
the mles which remained in force by virtue of cl. 9
was exercisable except as provided by the Adaptation of Indian Laws order, 1937. By s. 241 (2)
of the Government of India Act, 1935, the conditions of service, in the case of persons serving in
connection with the affairs of a Province, were to
be such as may be prescribed by rules made by
the Governor, or by persons authorised to make
rules for that purpose. But this provision was,
till other provisions were made, subject to cl. 15 (2)
of the Commencement and Transitory Provisions
Order,
1935.
Clause 7 of the Adaptation of
Indian Laws Order on which reliance was placed
by counsel for the appellant in support of his
contention that the Governor alone could exercise
the powers of dismissal under the Rules because he
was the corresponding authority, does not also
assist the appellant. The clause applies only to
those cases where an authority competent at the
date of passing of any Indian law, to exercise any
powers or authorities or discharge any functions,
ceased to exist and a corresponding new authority
was constituted by or under any Part of the
Government of India Act, 1935 : the clause did not
apply where only the powers of an authority were
vested in another authority, the former authority
not otherwise ceasing to function.
The condition
of service of civil servants having remained unaltered even after the Government of India Act, 1935
was brought into operation by virtue of the
Commencement and Transitory Provisions Order
1936, and the Adaptation of Indian Laws Order
h~ving made express provision saving the rules as
well as the authority granted under the rules
to the Financial Commissioner, the order of the
Financial Commissioner dismissing the appellant
from service was not unauthorised.
1961
Gian Sinth
v.
The State •f
Punjalt
Sh.J.J.
Gi1111 Sin:h
v.
TM St•lc •!
PurJ•i
Sh•h ].
522
SUPREME COURT HEPOHTS
[1962]
The contention of counsel for the appellant IC
that by tho enactment of s. 241 of the Government
of India Act, Hl35, civil scrvant8 serving a. Province
could be dismi~se<l after that Act was brought into
operation only by the Governor of the ProYince and
by no other authority has therefore no fo rec.
Counsel submitted that in anv event, fre11h
rules govorning the civil snviccs ·in the Punjab
having beon frnmPd in l!J.11 by the Gov<'rnrnent
of th" Province of Punjab, the Tchsildari Rules,
I!l32 even if they w1.•rc· not superseded by the amendment made by the Adaptation of Indian Laws
Order, I 937 in the Punjab Land Hcvcrnie Act, 1887
stood expressly repealed, and the powers of the
Financial Commissioner to dismi8s a. Tchsilda.r
could not thereafter, be exercised.
But the plea.
that fresh rules wern framed in Hl41 in superncssion
of the Punjab Teshsildari Rule8, 1932 was not
adv1mced in the High Court. In I 941, fresh Civil
Services Rules applicable to the Punjab were undoubtrrlly promulgated; it is however unnecessary
to consider whether under the Punjab Civil Service
Rules, 1941
th<~ Governor alone waR competent to
dismiss from S!'rvice a public servant of the Provincial Service or subordinate Sen· ice
or officers
holding special posts or any other Government servant or class of Government servants to whom
thoee rules applied.
It. was exprcRsly enacted in
r. 1.4 that the Civil Services Rules were not to
apply to any person for whose appointments and
conditions of service special provision was made
by or under any law for the time \,ping in fore!'.
Special provision did iu fa<·t f'Xist for the appointments and Conditic>n of sen ice of Tehsildars under
the law for the time hcing in force and those
rules arc not shown to han: been superseded
or abrogated by the Civil Services Rules. Counsel
for
the appellant asscrt<:cl that Tchsildars belonged to the Subordinate Services, Class III, and
the rules framed in 1941 under s. 241 of the GovernmeH t of India Act superseded tho Tchsildari Rules,
I
•
•
·~
).
•
3 S.C.R.
SUPREME COURT REPORTS
523
of 1932. The Advocate General appearing for the
State of Punjab submitted that Tehsildars were
not included in the Subordinate Services, because
no notification in that behalf was issued.
As we
have already observed, the question as to the .
effect of the rules framed in 1941 under s. 241 of
the Government of India Act was never raised or
argued before Bishan Narain, J., nor before the
High Court in appeal. It is difficult for this Court
to entertain any plea depending for its adjudications on notifications said to be
issued by the
Government from time to time, raised for the first
time in appeal, when such notifications have never
been brought to our notice.
On the whole, we are of the view that the
record does not support the contention that the
Punjab 'l'ehsildari Rules were not in operation at
the date of dismissal. There is also nothing to
show that the Financial Commissioner was not
invested at the material time with the power to dismiss a Tehsildar.
The appeal therefore fails and is dismissed
with costs.
RAGHUBAR DAYAL, J.-I regret my inability
to agree with the view that the Punjab Tehsildari
Rules of 1932 applied to the service of Tehsildars
and Naib Tehsildars in 1953.
The appellant was an officiating Tehsildar in
1953 in the State of Punjab, when he was dismissed
by the Financial Commissioner, Punjab, on October
26, 1953. Having failed to get the order changed
as a result of his appeal and a revision to the
Government, he field a petition under Art. 226 of
the Constitution in the High Court of Pnnjab and
prayed for his reinstatl1ment from the date of his
dismissal by the issue of an appropriate writ.
Among the grounds in support of his prayer, the
petition mentioned that the Financial Commissioner was not competent authority to order the
dismissal of a Tehsildar in view of Rule 2.14 of the
Punjab Civil Services Rules, (hereinafter called
the Civil Services Rules), read with Chapter XV,
GieJn Sin:h
v.
Tht Statt •f 1'1mja.i
Sh•h ].
Rqhu,ar Dtr.,J•l J.
1961
Gitm Sinzh
v.
Th. State of l'unj•I
R11Jwhar D11J·a{ ].
•
524
SUPREME COURT REPORTS
[1962)
the Rules being framed under Art. 30!l of the
J.
Constitution.
It wall contended on behalf of the Stat-0 that
the petitioner's terms aml conditions of service were
governed by the Punjab Tehsildari Ru lcs, Hl32
(hereinafter called the Tchsildari Rules) which
empowered the Financial Co.lmllissioner to appoint
and dismiss Tchsildars.
0
Bishan Kamin, J., who heard the petition,
allow!'cl it holding that the Tc·hsilclari Hules ceasPd to
operate since the amcn<lmcnt of~. !l of the Punjab
Land Revenue Act, 188i (Act XVII of 1887), hereinafter called the Revenue Act), by the Government
of India (Adaptation of Indian Laws) Order, l!l3i,
(hcrei"aft.er called the adaptation Order), which
dclctl'd that part of the .section which empowered
the Financial Commissioner to make rules for the
appointment and removal of Tehsil<lars and Na.ib
Tehsildars, and in the exercise of which power tho
Tehsildari Rulos had been made bv the Financial
Commissioner, there being nothing in the Government of India Act, 1935, (hereinafter ca.lied the
Act) or in the Adaptation Order proscrving the
validity of these Rules notwithstanding the ·repeal
of the relevant provision in s. 9 of the Revenue Act.
He observed in his order :
•
"It is nobody's case tha.t the Punjab
Civil Service Rules made after the 1935 Act
Contain any provision which keeps these rules
-"
of 1932 alive an<l in force.
Neither is it the
respondent's case that after the amendment
of Section !l of the Punjab Act tho Governor
or the Provincial Government ever delegated
the power of appointments and dismissals of
Teh8ild11rs and ~aib Tchsildars to the Financial Commissioner."
'l'he Tchsi ldari Rules, therefore, according to him, ,.}
being inoperative after lhc commencement of the
Act, could not have become operative under the
•
3 S.C.R.
SUPREME COURT REPORTS
525
Constitution, by
virtue of the provisions of
Art. 372 of the Constitution. Holding that the Civil
Services Rules which governed all States services
governed the services of Tehsildars and Naib
Tehsildars and that nothing in those Rules em·
powered the Financial Commissioner to appoint or
dismiss a Tehsildar, he
allowed the petition,
ordering that the appellant's dismissal was void
and of no legal effects.
The State preferred a Letters Patent Appeal.
The grounds of appeal mentioned that the Tehsildari Rules were in force on January 25, 1950, in
view of ss. 292 and 293 of the Act and also s. 18 (3)
of the Indi1tn Independence Act, and thereafter
under Art. 372 of the Constitution, and that the
finding that the conditions of service of Tehsildars
were governed by the Civil Services Rules was
wrong.
The appellate judgement considered that the
Tehsildari Rules were made either in the exercise
of the powers conferred by the Government of
India Act, 1919, or in the exercise of the powers
conferred by the Revenue Act, and came to the
conclusion that in the former case they. continued
to be effective rules in view of s. 276 of the Act,
and Art. 313 of the Constitution, it being not
shown that those rules had been replaced by another set of rules or those rules were inconsistent
with the provisions of the Act or the Constitution and that in the latter case the rules continued to be in force by virtue of paragraphs 9 and
10 of the Adaptation Order which made it clear
that the Financial Commissioner who had the
power to appoint or dismiss a Tehsildar continued
to exercise those powers, those powers having been
not abrogated or withdrawn. The Letters Patent
Appeal was consequently allowed and the writ
petition was dismissed. It is against this order
that the appellant has filed this appeal by certificate granted by the High Court.
1961
Gian Sin:h
v.
1'he State of Pu'!jai
Raihuh•r D•v•l ].
Jlfl
Gian Sinzh
v.
Tht St•tr 1,f Pu'!J·••
lf.a1J111••r Dtt,"l•l J.
526
SUPREME COURT REPORTS
[1962)
It is contended for the appellant that the Teh·
eildari Hules ceased to be operative from the commencement of the Act and in Any case, ceased to
be opcrati,·c from the 1st of April 1941 when the
Civil Services Rules madt> by the Governor came
into force and th11t therefore the Financial Com· .
missioner
was not competent to dismiss the
appellant.
It has not been urged for the respondent in
this Court that the Tchsildari Rules were fram<'d
under the Govemm<'nt of India Act of 1919 and
that therefore thev continued to he in force i11
view of s. 27G of the Act, and Art. :ll 3 of the
Constitution.
The cont!'ntion, even if it had hr!'ll
raised, coul<l not h:n-c
succeeded,
aR
a
Rule
empowering a financial Commissioner to appoint
and dismiss Tehsildars could not have been consistent with the provisio1rn of s. 241 of the Act
which laid down that, except as expressly provided by the Act, appointments to the Civil Herviccs
or any civil po8ts under the Crown in India would
be made in the c11so of ser1•ices of a province
and posts in connection with the affairn of a pro·
vinco by the Go,·crnor or such persons as he may
direct.
It hM not been urged before us, that the
Gov<>mment did, subsequent to the {'nforccm<'nt of
the Act pass any order <'mpowcring the Financial
Commissioner to appoint and dismiss Tchsildars.
The order of the
Financial Commissioner
was supported on behalf of the State on the pro·
visions of paragraphs fl and 10 of the Adaptation
Order of rn:n and rule I. 4 of th<· Civil Services
Rules, 1941, and at the further hearing, in connection with the effect of paragraph 7 of that Order
to which no roforcnce hacl been made at the first
hearing, on the provisions of cl. (2) paragraph lfi
of Government
of India (Commencement and
Transiton Provisions) Order, 1936 (hereinafter
1
38.C.R.
SUP~EME COURT REPORTS
527
J( called the Transitory
Order), and paragraph
12 of the Adaptation Order.
The contention
really is that the Tehsildari Rules continued to be
valid both in view of paragraphs 9 and IO of the
Adaptation Order and the Transitory Order till
such time as the Governor made the new rules
and that the Tehsildari Rules continued to be in
-( force after the 1st of April 1941 since the Tehsildars were persons for
whose appointment and
conditions of service special provision had been
made under those rules.
I shall first deal with the effect of the provisions of the Adaptation Order on the Tehsildari
Rules.
Section 292 of the Act reads :
"Notwithstanding the repeal by this Act
of the Government of India Act, but subject
to the other provisions of this Act, all the
Jaw in force in British India immediately
before the commencement of part III of this
Act shall continue in force in British India
until altered or repealed or amended by
a competent Legislature or other competent
authority."
Section 293 .of the Act reads :
"His Majesty may by Order in Council
to be made at any time after the passing
of this Act proviie that, as from such date
as may be specified in the Order, any law in
force in British India or in any part of
British India shall until repealed or amended by
a competent Legislature or other
competent
authority, have effect subject
to such adaptations and modifications as
appear to His Majesty to be necessary or expedient for bringing the proTisions of that
law into accord with the provisions of this
Act and, in particular, into accord with the
1911
Gian Sinth
v.
Tht Statt 1/
Pwijafl
l!MI
Gian Sinth
v.
Tlit Stalt 1J
P'llnja;
R.,Jzi;~ar D•yt:l ].
528
SUPREME COURT REPORTS
(1962]
provisions thereof which reconstitute under
difforent names governments and authorities
in India and prescribe the distribution of
legislative and
executive powers between
the Federation and the Provinces :
Provided that no such law as aforesaid
shall be made applicable to any Federated
State by an Order in Council marlc under
this rnction.
In this section the expression 'law' does
not include an Act of Parliament, but incJu.
dt·s any orclinance, Order, byc-la.w, rule or regulation having in British India. the force of law.
It is in tho exercise of the power conferred by thi11
section that tho Adaptation Order was issued. Such
provisions of the existing Ja.w were to continue in
force as were consist<mt with the Act.
Power was
vested in His Majesty under s. 293 of the Act to
modify the provisions of existing l1tws in such manner as may be ncces~ry for bringing them into
accord with the proYisions of tho Act and, in parti·
cular, to bring them into accord with the pro\"isions
of the new Act which ro-constituted under different
names, governments and authorities in Im!i1t.
Paragraph 3 of the Adaptation Order provided
that tlw laws mentioned in the Schedules would
have effect subject to the adaptations and modifications directed by those Schedules until they are
repealed or amended by a competent authority or
by a competent Legislature.
Section 9 of the Revenue Act was modified
by the Adaptation Order.
Before such modificatione, it read:
"The Provincial Government. sh11.ll fix the
number of Tehsil<larR and Naib Tebsildars to
he appointed and the Financial Commissioner
mAY make rules for their appointment and
.
l"
"'"''''lVQ
•
-)I.
-
•
~$.C.R.
SUPREME COURT REPORTS
02!)
'£he Adaptation Order substituted the word 'State'
for the word 'Provincial' and omitted the word11
after the word 'appointed.' It follows that the
power of the Fin.ancial Commissioner to make rules
for the appointment of Tehsildars and Naib Tehsildars did not exist any longer, the provisions for
such :i. power having been repealed by the Adaptation Order. The consequence of such a repeal is
that such a power would be deemed to have never
existed in the Financial Commissioner and that the
rules framed by him would be deemed to be rules
framed without any jurisdiction to make them.
This is not really disputed and has the support of
the observations in Watson v. Winch('). 'fhe Revenue
Act, after amendment, did not provide about the
appointment of Tehsildars and Naib Tehsildars.
This must have been in view of the statutory provi·
sion existing for the purpose in sub-s. 1 of s. 241 of
the Act whose relevant portion is:
"Except as expressly provided by this
Act, appointments to the civil services of, and
civil posts under, the Crown in India, shall,
after the commencement of Part III of thi1
Act, be made:-
x
x
x
x
x
x
(b) in the case of services of province, and posts in connection with the
affairs of a province, by the Governor or
such person as he may direct."
It is to be noticed that the modifications made by
the Adaptation Order to ss. 7 and 8 deleted the
provisions empowering the State Government to remove the officers it could appoint under the provisions of those sections.
Paragraph 9 of the Adaptation Order
reads: "The provisions of this Order which
. adapt or modify Indian laws so as to alter thr
manner in which, the authority by which, or
the law under or in accordance with which ,
(1)
(1916) I K. B. 688.
1961
Gian Sinzh
v.
Tiu Staie of Pw:ijab
Ra/l,OObar J>ayal ].
1961
CimiSinth
v.
'l'ht SWe of Punja)
11.thub" Dayal ].
...
530
SUPHEi\IE COURT REPORTS
[1962j
any powers arc cxcrcisRble, shall not render ,..
invalid any notification, order, commitment,
attachment, bye-law, rule or regulation duly
made or issuer!, or anything duly rlone, before
the commencement of this order; and any
such notification, ordC'r, commitment, attachment, bye-law, rule, regulation or thing may be
revoked, varier! or undone in the like manner
to the like extent and in the like circumstanc<'s as if it had been made, is8ued or done
after the commencement of 1 his Order by the
competent authority and under and in accor·
dance with the provisions then applicable to
such a case."
The A'la.ptation Order modifies the law under
••
which the Tehsilda.ri Rules were framed. The result
of the pro·l"isions of paragraph !I of Adaptation
Order is that the Tehsildari Rules were not renrlerod
inn1lid, and that, for the purpose of revoking, varyin<>
or undoing the rules, they were to be dcem1>d to b;:
ma.de undor the Act.. There is nothing in this paragraph t~ provide thnt the rules must continue in
the same form in which they exist, even if they
were inconsistent with tho provisions of the Act.
•
Such could not have been provided by the Adaptation Order and has not been provided. The provisions of this paragraph apply when specified modifications aro ma.de by the Order not when the Act
itself affcctl! similar· provisions of the Indian L11w.
If something contrary to the rule has already been
provided in the act, no further occasion for making II.
that change in the rule by a competent Lcgisla.turo
or authority a.rises.
A subsequent change by a
competent authority is contemplated only when no
chauge has already been made in those rules on
account of thn prodsions of the Act. The Tchsildari Rules therefore became inoperative in BO far
as they provid<'d that the Financial Commissioner
could appoint and dL~miss Tchsildars and Naib, •
T<'hsildara, llR such a provision was inconsistent
38.d.R.
SUPREME OOURT REPORTS
531
I. with the provisions of s. 241 of the Act, which vests
the power of appointment in the Governor or in any
other person in accordance with his directions. The
power of appointment carries with it the power of
dismissal.
In Pradyat Kumar v. Chief Justice of Calcutta(')
this Court had to consider whether the Chief Justice
-( of the Calcutta High Court had power to dismiss
an employee of the High Court. In this connection,
it was not disputed that the Chief Justice was the
.;
authority for appointing the appellant. But it was
contended that he had not the power to dismiss.
The contention was that the appellant was a public
servant governed by the Civil Services (Classifica__.
tion, Control and Appeal) Rules of 1930, as
' amended from time to time and that those rules
continued to apply even after the Government of
India Act, 1935, and later when the Constitution
of India came into force. It was not disputed that
'dismissal' was a matter falling within 'condition
of service' of a public servant as held by the
Privy Council in North West Frontier Province v.
Suraj Narain Anand('), and that the power of making
_.
rules relating to the conditions of service of staff of
the High Court was vested in the Chief Justice of
the High Court under s. 242(4) taken withs. 241 of
the Act and also under Art. 229(2), of the constitution. It was however contended that the Chief
Justice of the High Court bad not framed any such
,-._ rules and that therefore, by virtue of s. 276 of the
Act and Art. 313 of the constitution, the Civil
Services Rules continued to apply to the appellant.
In considering the contention raised, this Court
11aid at page 288 :
"It will be noticed that cl. 8 (of the
Letters Patent of the High Court, 1865, as
amended in 1919) speci:fically vests in the
\
Chief Justice the power of appointment, but
makes no mention of the power of removal
(I) A~I.R. 1956 S.C. 235.
(2) A.J.R, 1949 P,C. 112.
· 1961
Giari $ing'1
v.
The State of hnj•b
Raghuba\ Da,Yal ].
1961
GiaJt. Sinth
v.
Tli• Slat"/ PWtjab
Rag/lobar D...,.J ].
SUPREME COURT REPORTS
[1962] •
or of making reglllutions or provisions.
Rut
it is obviouR from the last portion of cl. 4 that
such power was taken 1o he implicit under
cl. 8 and presumably as arising from the powor
of appointment."
It was again said at the same page in considering
the powers of the Svprcme Court of Calcutta under
the Charter of 177+ :
•
"The power of removal or of taking other
disciplinary action as regard~ such appointees
was not. in tBrms granted. Rut there is
historical evidence to show that the power of
appointment conferred under tho Charter was
always understood as comprising the above ~
powers."
And a.gain, it wa.s said :
"Thus it is clear that both under tho
Charter of the Supreme Court as well as
under the Letters Patent of the High Court,
the power of appointment was throughout
understood as \'esting in the High Court or
the Chief Justice, the complete administrative•
and disciplinary control over its staff, inclu.
cling the power of dismissal."
It was further said, at pa.ge 201:
"It must be mentioned, at this stage, that
so far as the power of dismissal is concerned,
tho position under the Constitution of ID~
is not open to any argument or doubt.
Article 229(1) which in terms vcst,s the power
ofmppointm~nt in the Chief .Justice is equally
cffocti<:c to yest in him
the
power of
<lismissal.
This results from s. 16, General Clauses Act
which, by virtue of Article 367( I) of th~
Constitution applies to tho construction of tho
word 'appointment' in Art. 229(1). Section
16( l) General Clauses Act, clearly provides
-
SUPREME COURT REPORTS
533
that the power of 'appointment' includes the
power 'to suspend or dismiss'.
Paragraph 7 of the Adaptation Order reads:
"Subject to the forgoing provisions of this
order, any reference by whatever form of
,.,-ords in any Indian Law in force immediately
before the commencement of this order to an
authority competent at the date of the pasliing of that law to exercise any powers or
authorities, or discharge any functions, in any
part of British India shall, where a correspon ·
ding new authority has been constituted by
or under any Part the Government of India
Act, 1935, for the time being in force, have
effect until duly repealed or amended as if it
were a reference to that new authority."
I am of opinion that in view of paragraph 7
of the Adaptation Order quoted above, reference to
to the Financial Commissioner in the Tehsildari
Rules dealing with the appointment and removal of
Tehsildars aud N aib Tehsildars be taken to be a
reference to the new authority constituted under the
A. Act for their appointment and dismissal. The
authority for appointment and dismissal was the
Financial
Commissioner.
Corresponding
new
authority, i. e., a new authority whirh has power
to appoint and dismiss the Tehsildars and Naib
Tehsildars, is the Governor, in view of s. 241 of the
Act, and therefore, reference to the Financial
~ Commissioner in the Rules should be taken to be a
reference to the Governor, or to such authority as
be appointed by the Governor for the purpose, so
long as those rules continued to be in force subsequent to the commencement of part III of the Act,
i.e., till they are repealed or amended by new rnles.
I do not agree with the contention for the State
that since the office of the Financial Commissioner
{ did continue to exist; the provisions of paragraph
'7 of the Adaptation Order cannot be applied. The
worq 'qew' wjtq reference to the authority, doe~
1961
Gian Sin~h
v.
The Sia" of Punjab
--·
Raghubar Dayal J.
1981
GiaSirz~
v ..
Tiu Sl4te of P<Jnj11b
SUPP.E~IE COURT REPORTS
[l!l62]
not necessarily lead to the conclusion that the office "
in which a particular authority was veeted under
the old law must cease to exist and that it is only
thC'n
that any reference to that old authority
would be taken to Le a reference to the ne'"
authority on which that power is conferred.
Jn
m,v opinion, the expression 'corresponding new
authority' means a new authoritv on which the
•
power \l:hich was exercised Ly the ~&rlier authority
harl been conferred.
Paragraph lO of the Adaptation Order rt'a.ds:
"Save as provided
by this order, all
powers which ur,der any law in force
in
British India, or in any part of British India,
·-
were immcdiatclv boforo the commencement
of Part III of th~ Government of India Act,
1935, vested in, or exercisa.Lle by any pcreon
or authority shall continuo to Le so vested
or exercisable until othor provision is made
Ly some legislature or authority empowered
.to regulate the matter in question."
The only paragraph which has a bearing on the
.,
exercise of powers in this Order is paragraph 7.
The result of reading paragraphs 7 and I 0 together
is that if a new authoritv had been constitutt>d
for the exercise of any powers or discharge of any
functions, those powers will no more remain vested
in the old authority, but when no such correspondin"' new authoritv has been constituted, the old .,,
e
•
authority will continue to exercise those powers till
other provision is validly made.
I am therefore of opinion that the provisions of
paragraph IO of the Order arc not to Le constructed
in a. wav to make tho old authority continue to
exercise that power, when the Government of India
Act itself constitutes another authority for that L
purpose. If the Adaptation Order be so conRtrucd, ,.
the adaptation made by the Order would hardly
•
3 S.C.R.
SUPREME COURT REPORTS -
535
-:t be in furtherance of the provisions of s. 293 of the
Act.
In this connection I may quote the very
apposite observations in Pradyat Kumar v.