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PUNJAB & HARYANA HIGH COURT
Bhandari and Mehar Singh JJ.
State Of Punjab
Versus
S.Sukhbans Singh
Letter Patent Appeal No. 70 of 1954,
Decided On : FEBRUARY 12, 1957
ARTICLE 311 - CIVIL SERVICE - REMOVAL OR REDUCTION IN RANK - NOTICE AND HEARING - APPLICABILITY TO OFFICIALS HOLDING POSTS IN AN OFFICIATING CAPACITY - INTERPRETATION OF FUNDAMENTAL RULE 15 - POWER OF GOVERNMENT TO TRANSFER OFFICIALS IN OFFICIATING CAPACITY - SCOPE OF JUDICIAL REVIEW.
Fact of the Case:
The petitioner, a permanent Tehsildar, was appointed to the Provincial Civil Service in an officiating capacity as an Extra Assistant Commissioner. After serving for several years, he was reverted to his substantive rank of Tehsildar without being given a notice or hearing. He challenged this order, arguing that he was entitled to the protection of Article 311 of the Constitution, which prohibits the dismissal, removal, or reduction in rank of a civil servant without a reasonable opportunity to show cause.
Finding of the Court:
The court held that Article 311 does not apply to officials holding posts in an officiating capacity. It interpreted Fundamental Rule 15, which governs the transfer of government servants, as giving the government the power to transfer an official in an officiating capacity from a higher to a lower post without cause assigned. The court also held that the provisions of Article 320 of the Constitution, which require consultation with the Public Service Commission before a penalty is imposed on a government servant, are directory and not mandatory.
Issues: 1. Whether Article 311 of the Constitution applies to officials holding posts in an officiating capacity. 2. Whether the government has the power to transfer an official in an officiating capacity from a higher to a lower post without cause assigned. 3. Whether the provisions of Article 320 of the Constitution are directory or mandatory.
Ratio Decidendi: 1. Article 311 of the Constitution does not apply to officials holding posts in an officiating capacity because: - The language of the Article is broad and general, but it must be interpreted in light of the historical context and the purpose of the provision. - The purpose of Article 311 is to protect permanent government servants from arbitrary dismissal, removal, or reduction in rank. - Officials holding posts in an officiating capacity do not have a clear and specific legal right to hold those posts, and they are not within the protection of a statute or statutory rule forbidding their removal. 2. The government has the power to transfer an official in an officiating capacity from a higher to a lower post without cause assigned because: - Fundamental Rule 15 gives the government the power to transfer a government servant from one post to another, provided that the transfer is not made on account of inefficiency or misbehavior or on the written request of the government servant. - The rule does not distinguish between permanent and officiating government servants. - Therefore, the government has the power to transfer an official in an officiating capacity from a higher to a lower post without cause assigned. 3. The provisions of Article 320 of the Constitution are directory and not mandatory because: - The language of the Article is directory, not mandatory. - The purpose of the Article is to ensure that the Public Service Commission is consulted before a penalty is imposed on a government servant. - However, the Article does not specify the consequences of failing to consult the Commission. - Therefore, the provisions of Article 320 are directory and not mandatory.
Final Decision: The court allowed the appeal and set aside the order of the learned Single Judge. The parties were ordered to bear their own costs.
Bhandari, J.
1. This appeal raises the question whether it was within the competence of the State Government to order the reversion of the petitioner to his substantive rank of Tahsildar upon charges which he has had no opportunity to hear or defend.
2. The petitioner in this case is one S. Sukhbans Singh who is holding the rank of a Tahsildar in a substantive permanent capacity. He was appointed to the Provincial Civil Service on the 3lst May 1945 and was reverted to the post of Tahsildar on the 20th May 1952. He presented a petition under Article 226 of the Constitution in which he complained that his attempted reduction to the post of Tehsildar wag unlawful as it was effectuated without notice or hearing. The Learned Single Judge before whom the petition came up [or consideration granted a direction that the State should forbear from putting into execution the order complained of without complying with the provisions of Article 311 of the Constitution. The Stats is dissatisfied with the order of the Learned Single Judge and has preferred an appeal under clause 10 of the Letters Patent.
3. the petitioner was promoted to the Provincial Civil Service under the provisions 6f the Punjab Civil Service (Executive Branch) Rules 1930. These rules empower the Governor of the Punjab to appoint members of the service from time to time as required from among accepted candidates whose names have been duly entere in one or other of the registers of accepted candidates to be maintained under these rules (Rule 5). All such appointments are in the first instance either officiating, or substantive provisional (Rule 17). Candidates appointed from Register A-I or Register A-II are to remain on probation for a period of 18 months, but the Governor is at liberty, if he thinks fit, to extend the period of probation of any candidate (Rule 22). On completion of the period of probation prescribed or extended a member of the service becomes qualified for substantive permanent appointment. These rules clearly provide for a probationary period that must be served before the person appointed to the service becomes a regular or permanent member thereof.
4. the notification of the 5th June 1945 by which the petitioner was appointed to the Provincial Civil Service Ss in the following terms :
"The Governor cf the Punjab is pleased to make the following appointments and transfers with effect from the dates mentioned:-
_____________________________________________________________________________________________
Name Rank Appointed Posted or transferred Remarks
to__
_____________________________________________________________________________________________
Sukhbans Singh. Tahsildar Extra Assistant Ferozpur with effect from On first appointment to the
Phillaur. Commissioner. 31st May, 1945. Provincial Civil Service.
____________________________________________________________________________________________
5 It is contended on behalf of the petitioner (hat he was appointed to the Provincial Service in a substantive permanent capacity as the expression Extra Assistant Commissioner appearing in column 3 of the above notification is not qualified by the words on probation or officiating and as certain other officers who were appointed to this service previously were gazetted as having been appointed on probation. This contention cannot, in my opinion, bear a moments scrutiny.
The learned Advocate-General has stated at the bar that the practice of gazetted officers as on probation has been discontinued and that all officers who are appointed to the service are placed as probationers in the first instance and are later confirmed if their work in the probationary period is found to be satisfactory. I am satisfied with this explanation. In
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