Judgment

SHAH, J. (on behalf of himself, P. B. Gajendeagadkar, M. Hidayatullah & K. Subba Rao JJ.) : Sardar Gian Singh - hereinafter called the appellant - was recruited in 1927 as a Naib Tehsildar in the Revenue department of the Province of Punjab. He was confirmed in that rank in 1939. In 1946, he was promoted to the rank of officiating Tehsildar and was posted as Tehsildar at Hansi in the district of Hissar on September 22, 1947, and since then he held the post of Tehsildar at diverse places.

2. 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 appellant 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 infractuous. 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 Narain 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 rules regulating the appointment and dismissal of Tehsildars because of the amendment of the Punjab Land Revenue Act, 1887 by the Government of India (Adaptation of Indian Laws) 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 of the Letters Patent, a Division Bench of the High Court reversed the order passed by Bishan Narain J. The High Court held that by virtue of cls. 9 and 10 of the Government of India (Adaptation of Indian Laws) Order, 1937, the rules framed under the Punjab Land Revenue Act, 1887 continued to remain in operation even after the Act was amended by the Adaptation of Indian Laws Order, 1937 and the Financial Commissioner remained invested with the power to dismiss the appellant from service. The High Court accordingly dismissed the petition of the appellant. The appellant has appealed to this Court against the order o the High Court with certificate of fitness under Art. 133 of the Constitution.

3. Section 9 of the Punjab Land Revenue Act, 1887, as it was originally enacted, stood as follows :

"The Provincial Government shall fix the number of Tehsildars and Naib Tehsildars to be appointed, and the Financial Commissioner may make rules for their appointment and dismissal."

4. Under S. 9 read with S. 28 of the Act, rules were framed in 1932 by the Financial Commissioner. Punjab, and authority to appoint Tehsildars and to remove them from service was, by these rules, conferred upon the Financial Commissioner. After the enactment of the Government of India Act, 1935, S. 9 of the Punjab Land Revenue Act was amended by the Adaptation of Indian Laws Order, 1937, and the power of the Financial Commissioner to make rules under S. 9 was abrogated by the deletion of the words in that section following the word "appointed". Section 28 which authorised the Financial Commissioner to make rules to regulate appointments, duties, emo