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High Court Of Madhya Pradesh
G. L. Oza, C. J., Gulab Chand Gupta and B. M. Lal, JJ.
SAMARU DAS BANJARE
Versus
STATE OF MADHYA PRADESH
Decided On : Apr 24,1985
(2) Constitution of India -- Arts. 309 & 234 -- scope of -- relates to appointment to judicial service and not conditions of service -- Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960 (M.P.).
Article 234 of the Constitution indicates that for appointment of persons other than District Judges to the judicial service of the State, the rules have to be framed by the Governor in consultation with the High Court and the Public Service Commission. Clearly Article 234 talks of rules for appointment to judicial service other than District Judge but it does not talk of conditions of service whereas Article 309 talks of both recruitment and conditions of service and admittedly the M. P. Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960, are rules pertaining to conditions and it is, therefore, apparent that there is nothing inconsistent in these rules with Article 234 and, therefore, the contention that in view of Article 234 these rules will be invalid is of no substance. These rules have been framed under Article 309 and it clearly confers jurisdiction on the Governor of a State to frame rules for laying down the conditions of service and, therefore, in absence of statutory enactment these rules could not be said to be invalid. [Para 11
(3) Government Servants (Temporary and Quasi Permanent Service) Rules, 1960 (M.P.) -- R. 3A -- interpretation of -- words 'appointing authority' have to be read as 'competent authority' -- Constitution of India -- Art. 235.
(4) Constitution of India -- Art. 235 -- Government Servants (Temporary and Quasi Permanent Service) Rule, 1960 (M.P.) -- R. 3-A -- interpretation of -- should be interpreted in a manner that it may not be unconstitutional.
(5) Interpretation of Statutes -- provision may be read differently in order to make it constitutional.
In order to make R. 3-A workable 'competent authority' has to be read in place of 'appointing authority' in R. 3-A.
This reading has to be adopted to make the rule valid and constitutional. AIR 1980 SC 1042 & (1973) Supp. SCR 1 relied on. [Para 13
(6) Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960 (M.P.) -- R. 3-A -- 'reasons to be recorded' -- implications of -- mere recording of satisfaction not enough.
(7) Natural Justice -- rules of -- requirements of -- apply both to quasi-judicial and administrative cases -- what is "rule of reason".
The requirement of giving reasons in the light of the language of Rule 3-A has to be considered in two aspects: First, the statutory requirement, as that is the language of the rule itself, and, second, as a part of the principles of natural justice. As regards the language of the rule for 'reasons to be recorded', it is settled law that when satisfaction has to be recorded with reasons thereof, mere recording of satisfaction or conclusion as to the existence of the essential conditions is not enough. [Para 15
Principles of natural justice apply in quasi-judicial and administrative actions and thus 'rule of reason' is a part of principles of natural justice. A statutory authority is required to observe this rule in the absence of a provision in the statute in that behalf, 1980 JLJ 69 held to be not laying correct law; 1969 JLJ 499 held to lay down the correct law. [Para 19
(8) Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960 (M.P.) -- R. 3-A -- word 'reasons' -- import of.
(9) Words and Phrases -- 'reason' and 'conclusion' -- distinction between and Import of.
'Reasons' and 'conclusions' are the links between the materials on which certain conclusions are based and the actual conclusions.
The reasons disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. [Para 20
(10) Precedents -- two conflicting decisions -- latter view has to be accepted.
(11) Constitution of India -- Art. 141 -- two conflicting rulings of Supreme Court -- later to he followed.
It is well settled that if the two Benches of the Supreme Court take different view of law, it is the latter view which is accepted as the correct view. [Para 19
(12) Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960 (M.P.) -- R. 3-A -- words 'otherwise order' -- import of.
The words 'otherwise order' have to be read in the context in which they appear. The context clearly indicates that incase no order is passed by the Competent Authority, the Government servant would be deemed to have acquired the status of quasi-permanent Government servant. An 'otherwise order' in this context would mean an order arresting the effect of this deeming provision. The order must, therefore, indicate how a Government servant would not become a quasi-permanent servant within the meaning of this rule inspite of his remaining in temporary service continuously for five years. [Para 21
(13) Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960 (M.P.) -- R. 3-A -- reasons -- those existing on the date of the order are relevant.
(14) Practice -- order -- should be based on facts existing on record shown in the order -- later events or explanations are irrelevant.
When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. AIR 1978 SC 851 relied on. [Para 22
( 1. ) THIS petition was heard by learned single Judge who after hearing made a reference to this Bench for answering the following question :
"whether the resolution of the Court Meeting dated 27-2-1981 satisfies the requirement of an otherwise order of the appointing authority by recording reasons in writing as contemplated under Rule 3-A of the Madhya Pradesh Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960?"
( 2. ) THE facts necessary for consideration in this petition are that the petitioner was appointed as Civil Judge in Madhya Pradesh Judicial Service, class II, by the respondent State by its order dated 15th July 1976 and he joined the said assignment on 4th August 1976. The appointment was temporary and on officiating basis for a period of six months for training and thereafter for a period of two years on probation. It is not disputed that the petitioner completed the training and also the period of probation without any complaint whatsoever. He was, however, not confirmed after the aforesaid period and continued without an order of confirmation or discharge. It appears that on 31st August 1981 (Annexure-D) an adverse confidential report for the period ending 31st March 1981 was communicated to him by the Registrar of this Court earlier as decision had been taken in the full Court meeting held on 27th February 1981 not to confirm the petitioner (Annexure R-1 ). However, before the above mentioned confidential report could be communicated to the petitioner, a decision to terminate his service was taken in the Court meeting dated 28th August 1981 (Annexure R. 2 ). Except for the aforesaid adverse confidential report there is nothing adverse against the petitioner. On the contrary, reports of various District and Sessions Judges under whom he had worked showed that his work and conduct was satisfactory. Even the report of the District and sessions Judge, Jabalpur, who has recorded the adverse confidential report above, shows that his disposal of cases between July to December 1980 was above average and nothing adverse was mentioned against him in the report for the said period. These reports are filed as Annexures C-1 and C-2. In pursuance to the decision taken in the Court Meeting, the impugned order of termination of his employment purporting to be under Rule 12 of the m. P. Government Servants (Temporary and Quasi-Permanent Service)Rules, 1960, has been passed by the respondent, State Government. Before the learned single Judge, reliance was placed on a Division Bench decision of this Court in Smt. Beena Tiwari v. State of M. P. and another M. P No 61 of 1980, decided on 9th April 1981. where in identical circumstances the matter was considered and Rule 3-A of the above Rules was considered. The Division Bench decision in Beena Tiwaris case took the view that Rule 3-A in view of Article 235 of the Constitution could be read as workable if the term appointing authority occurring in this rule is read as competent authority. As under Article 235 the control vests in the High Court, the High Court will be the competent authority and if in Rule 3-A instead of appointing authority, competent authority is read, the rule will be workable and, therefore, it was held that the otherwise order contemplated in Rule 3-A could be the order passed by the High court. In this decision the Division Bench also took the view that the requirement of the otherwise order as contemplated in Rule 3-A is satisfied when the High Court found the officer not fit for confirmation and it is this which the learned single Judge felt required reconsideration in the light of the language of Rule 3-A as Rule 3-A reads :
"government servant in respect of whom a declaration under clause (ii) of rule 3 has not been issued but has been in temporary service continuously for five years in a service or post in respect of which such declaration could he made shall be deemed to be in quasi-permanent service unless for reasons to be
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