1. Confirmation of officiating Tahsildars without existing vacancies — subsequent creation of supernumerary posts — de-confirmation by successor government — challenge under Article 226. (Para 1 , 2 )
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1963 Supreme(SC) 228
SUPREME COURT OF INDIA
19th September, 1963
P.B. GAJENDRAGADKAR, K. SUBBA RAO, K.N. WANCHOO, N. RAJAGOPALA AYYANGAR AND J.R. MUDHOLKAR, JJ.
The State of Punjab (In all the Appeals), Appellant
Versus
1. Jagdip Singh (in C. A. No. 290 of 1962) 2. Gurdhian Singh (In C. A. No. 291 of 62) 3. Malvinder Singh (In C. A. No. 292 of 62). 4. Rajwant Singh (In C. A. No. 293 of 62), Respondents.
Civil Appeals Nos. 290 to 293 of 1962.
Advocates appeared
Mr. S. M. Sikri, Advocate-General for the State of Punjab (M/s. Gopal Singh and R. N. Sachthey, Advocates, with him), for Appellant (In all the appeals); Mr. S. P. Sinha, Senior Advocate, (M/s. Sukhdev Singh Sodhi, S. K. Mehta, Shahzadi Mohiuddin and K. L. Mehta, Advocates, with him), for Respondents (In All the appeals).
Advocates:
Gopal Singh, K.L.Mehta, R.N.SACH, S.K.MEHTA, S.M.Sikri, S.P.SINHA, Shahzadi Mohiuddin, SUKHDEV SINGH SODHI
Gopal Singh, K.L.Mehta, R.N.SACH, S.K.MEHTA, S.M.Sikri, S.P.SINHA, Shahzadi Mohiuddin, SUKHDEV SINGH SODHI
An order of confirmation made without a substantive vacancy is void and confers no legal rights. Correcting such a void order by reverting an employee to officiating status does not constitute a reduction in rank as punishment under Article 311(2) of the Constitution.
Headnote:(A) Constitution of India - Articles 226 and 311(2) - States Re-organisation Act, 1956 - Section 116 - Service Rules - Confirmation of officiating employees - Void orders - Reduction in rank - Whether correcting a void order of confirmation amounts to reduction in rank as punishment under Article 311(2) - An order of confirmation made in the absence of substantive vacancies is void and confers no legal right - The subsequent creation of supernumerary posts does not validate a void order - Notification treating a void confirmation as cancelled does not constitute reduction in rank by way of punishment and thus does not attract the requirements of Article 311(2). (Paras 6, 8, 9)
(B) States Re-organisation Act, 1956 - Section 116 - Power of successor government to pass orders affecting the continuance of an officer in a post. (Para 11)
(C) Dissenting View - Order of confirmation validated by subsequent creation of supernumerary posts - Reduction in rank is punishment if the employee had a right to the post or suffered evil consequences, regardless of whether the action was based on misconduct. (Paras 18-24)
Facts of the case:
Officiating employees were confirmed as permanent in posts where no substantive vacancies existed. Supernumerary posts were created the following day to provide liens. Following a merger of states, the successor government issued a notification "de-confirming" the employees, reverting them to officiating status, on the ground that the original confirmation was void as the availability of permanent posts should precede confirmation.
Findings of Court:
The original confirmation was void as it lacked a legal foundation due to the absence of vacancies. A void order cannot give rise to legal rights. The notification of de-confirmation was merely a correction of an earlier error and not a punishment.
Issues: Whether the confirmation of officiating employees in the absence of vacancies was valid; whether the subsequent creation of supernumerary posts validated such confirmation; and whether the "de-confirmation" amounted to a reduction in rank as punishment under Article 311(2) of the Constitution.
Ratio Decidendi: An order of confirmation made without the existence of a substantive vacancy is void ab initio. Since a void order confers no legal right, the government is not powerless to treat it as such. Such a correction does not constitute a reduction in rank by way of punishment, and therefore, the procedural safeguards of Article 311(2) are not attracted.
Result: Appeals allowed.
Legal Category Hierarchy
Table of Contents
2. Whether de-confirmation constitutes reduction in rank under Article 311(2) — whether successor government can revoke void confirmation orders of predecessor state. (Para 3 , 4 , 9 , 10 , 11 )
3. Confirmation without substantive vacancies is void — subsequent creation of supernumerary posts cannot validate a void order — correcting a void order is not punishment. (Para 6 , 7 , 8 , 9 , 10 )
4. An order of confirmation made without a substantive vacancy is void and creates no legal rights; its rectification does not attract Article 311(2). (Para 6 , 8 , 9 )
5. Appeals allowed — High Court judgment set aside — writ petitions dismissed. (Para 12 , 27 )
6. Is an order of confirmation valid if no substantive vacancy exists at the time of issuance?
No. Confirmation requires an actual or anticipated substantive vacancy. An order made without such vacancy is void and cannot give rise to legal rights. (Para 6 , 8 )
7. Can the subsequent creation of supernumerary posts validate a void order of confirmation?
No. The creation of supernumerary posts after a void confirmation is an after-thought and cannot validate an original order that lacked legal foundation. (Para 7 )
8. Does the rectification of a void confirmation order constitute a reduction in rank attracting Article 311(2) of the Constitution?
No. If the original confirmation was void, the person never held the legal status of a permanent employee. Correcting this error to recognize their actual officiating status is not a punishment. (Para 8 , 9 )
9. Can a successor government pass orders affecting the continuance of an officer in a post held under a predecessor government?
Yes. Under Section 116(2) of the States Reorganisation Act, 1956, a competent authority of the successor government may pass orders affecting an officer's continuance in a post. (Para 11 )
Judgment
MUDHOLKAR, J. : (On behalf of Gajendragadkar, Wanchoo, Rajagopala Ayyangar JJ. and himself): 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 Tahsildars. 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.
2. The respondents were officiating Tahsildars in the erstwhile State of Pepsu. By notification No. RD/Est. 74 dated October 23, 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 the Rajpramukh ordered that supernumerary posts will be reduced as and when permanent vacancies arose and that no pay will be drawn against these posts. November 1, 1956 the State of Pepsu was merged with the State of Punjab by virtue of the operation of the States Reorganization Act, 1956. On November 12, 1956 the Deputy Accountant General, Punjab wrote to the Financial Commissioner to the Government of Punjab, bringing to his notice the fact that seven Tahsildars were confirmed by the Financial 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 dates Simla 2, the 12th October, 1957.
Subject: Absorption of Tehsildars 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) Avatar Krishna Bhalla, and (7) Ram Singh, as Tehsildars. As there were no permanent regular vacancies available in the cadre of Tehsildars at the time of issuance of the above notification, seven supernumerary posts of Tehsildars were created by a subsequent orders vide letter No. RD/18/(193)E/56 dated the 24th October, 1956 of 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 of Punjab is pleased to order the cancellation of Notification No. RD/- Est-74, dated the 23rd October, 1956 regarding confirmation of 7 Tehsildars and letter No. RD-18(193)E/56, dated the 24th October, 1956 regarding creation of 7 supernumerary posts of Tehsildars. The aforementioned seven Tehsildars will consequently 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 no
