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