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HIGH COURT OF HIMACHAL PRADESH
T. RAMABHADRAN, J.
Union of India
Versus
Kedareshwar
Second Appeal No. 7 of 1958
Decided On : 30-04-1959
COMPULSORY RETIREMENT - PERMANENT PUBLIC SERVANT - MANDI STATE - MERGER WITH UNION OF INDIA - STATUS OF SERVANTS - CONDITIONS OF SERVICE - TERMINATION OF SERVICES - AUTHORITY COMPETENT TO ORDER RETIREMENT - PROCEDURE TO BE FOLLOWED - LIMITATION - SUIT FOR DECLARATION - MAINTAINABILITY.
Fact of the Case:
The plaintiff, a permanent public servant of the erstwhile Mandi State, was compulsorily retired on 18-11-1948 by an order passed by Mr. E.P. Moon, Deputy Chief Commissioner, Himachal Pradesh. The plaintiff challenged the order as being illegal and without jurisdiction, and filed a suit for a declaration to that effect. The trial Court decreed the suit, and the defendant appealed to the District Judge. The District Judge upheld the decree of the trial Court, and the defendant preferred a second appeal to the High Court.
Finding of the Court:
The High Court held that the order of compulsory retirement was illegal and void, as it was passed by an authority not competent to do so. The Court also held that the suit was not hit by the proviso to S. 42, Specific Relief Act, and was, therefore, maintainable.
Issues: 1. What was the status of the permanent public servants of the erstwhile Mandi State after the merger of the said State in the Union of India on 15-4-1948? 2. Whether the provisions of the Government of India Act, 1935, were applied to Himachal Pradesh and if so, when and how long they remained in force in that territory? 3. Whether the public servants of the erstwhile Mandi State, were governed by any rules or regulations, after the merger of the said State in the Union of India on 15-4-1948? 4. Whether any permanent public servant of the erstwhile Mandi State could be compulsorily retired or his service terminated after 15-4-1948, more particularly on 18-11-1948? If so, under what circumstances and subject to what terms could such a course be adopted. Who was competent to issue such an order and what way the procedure to be followed in such a case? 5. Whether the suit was barred by limitation? 6. Whether the suit was hit by the proviso to S. 42, Specific Relief Act, and was, therefore, not maintainable?
Ratio Decidendi: 1. On the merger of the erstwhile Mandi State in the Union of India on 15-4-1948, the rights and obligations of the permanent public servants of the said State came to an end and the Union Government could impose new conditions of service upon them and could even terminate their services. 2. The provisions of the Government of India Act, 1935, were not applied to Himachal Pradesh on the day of independence 15-8-1947. Only certain provisions of that Act - i.e. those which were applicable to the Chief Commissioners Province of Delhi - were made applicable to Himachal Pradesh on 1-8-1949. This state of affairs continued till 26-1-1950, when the Constitution came into force. 3. After the merger of the Mandi State in the Union of India on 15-4-1948, the public servants of the former Mandi State were governed in the matter of pay, pension, leave etc. by the Mandi Civil Service Regulations and by the Government of Mandi State Act. 4. A permanent public servant of the erstwhile Mandi State could be compulsorily retired or his services terminated after 15-4-1948, provided he had completed 25 years qualifying service. Such an order could be passed by an authority not subordinate to that by which the public servant had been appointed. In case of such retirement or termination of services, such public servant was to be granted invalid pension. 5. The suit was not barred by limitation, as it was filed within six years from the date of the order complained of. 6. The suit was not hit by the proviso to S. 42, Specific Relief Act, as the plaintiff was not seeking arrears of salary in addition to a declaration.
Final Decision: The second appeal was dismissed with costs.
2. For reasons to be stated shortly, I have come to the conclusion that this second appeal must fail.
3. I shall refer to the various points that were argued before me, seriatim.
4. (A) The first point to be considered is : What was the status of the permanent public servant of the erstwhile Mandi State after the merger of the said State in the Union of India on 15-4-1948. This was one of the issues remitted to the District Judge under O. 41, R. 25. The District Judge has found that the rights and obligations of the permanent public servants of the erstwhile Mandi State came to an end at the date of merger and the Union Government could impose new conditions of service upon them and could even terminate their services. In coming to this conclusion, the District Judge has referred to two decisions, one that of the Privy Council, reported in Vejesinghji Joravarsinghji v. Secretary of State, AIR 1924 PC 216, and another that of the Supreme Court, reported in Rajvi Amar Singh v. State of Rajasthan, AIR 1958 SC 228.
The learned counsel for the respondent submitted that the Privy Council decision pertained to the pre-constitution period and, consequently, would not hold the field now. The decision of the Supreme Court, reported in AIR 1958 SC 228, however, lays down clearly that, on the merger of the former Bikaner State in the new State of Rajasthan, the old contracts between Bikaner Darbar and its servants terminated and those who continued in service did so on the basis of fresh contracts, the conditions of which had yet to be determined.
On the same analogy, on the merger of Mandi State in Himachal Pradesh (later a Part C State of the Union of India), the old contracts of service between the Mandi Darbar and its servants came to an end. Ex. P. 37, to which my attention was invited by the learned counsel for the respondent, is copy of a letter dated 1-5-1948, issued by the Under Secretary, Ministry of States, Government of India, to the Deputy Chief Commissioner, Himachal Pradesh. It refers to an assurance given to the Rulers of the former Punjab Hill States, now merged in Himachal Pradesh, to the effect that public servants in those States would either be continued on conditions similar to those enjoyed by them before 1-2-1948, or be paid reasonable compensation. The District Judge has rightly pointed out - vide AIR 1924 PC 216 - that the right to enforce such an assurance remained only with the high contracting parties. I, therefore, accept the finding of the District Judge on this issue.
5. (B) The next question that was argued before me was whether the provisions of the Government of India Act, 1935, were applied to Himachal Pradesh and if so, when and how long they remained in force in that territory. This is the subject-matter of Issue No. 4, which was remitted to the District Judge under O. 41, R. 25. He has found that prior to 1-8-1949, no provision of the Government of India Act, 1935, was in force in Himachal Pradesh. On that date, only certain provisions of that Act - i.e. those which were applicable to the Chief Commissioners Province of Delhi - were made applicable to Himachal Pradesh. This state of affairs continued till 26-1-1950, when the Constitution came into force.
In coming to these findings the Dist
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