SAFALI ROY CHOUDHURY & ORS.

AMARENDRA KUMAR DUTTA

May 6, 1976

[P. N. BHAGWATI, A. C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.]

Interpretation of sratuteSr---Repea/ and saving prov'4ion-lntention of LeRis-- lature-Whether saving provisi'on can override new rights created by repealing statute.

"" Transfer of Property Act, 1882-Sec. 5-52-Transfer of Property-List

Pendens-lf applies to rights created by a stature.

West Bengal Premises Rent Control (Temporary Provisions) Act 1950- C West Bengal Premises 'Tenancy Acr 195&-Sec. 2(h), 16 and 40.

The respondent was the tenant of the suit premises and Dilip Narayan Roy Choudhury was his sub-tenant. The tenant instituted a suit against the subtehant when the West Bengal Premises Rent Control (TemI'Orary Provisions) Act, 1950 was in force seeking to evict the sub-tenant on the ground that he was a defaulter in payment of rent. After the suit was instituted, West Bengal Premises Tenancy Act, 19'56, was brought into operation. Section 40 of the subsequeht Act repealed the 1950 Act and further provided that notwithstanding the repeal of the said Act any proceedin2s pending on the date of the repeal may be continued as if the said Act had been in force and had not been repealed or had not expired. Section 16 of the 1956 Act cohfers on the sub-tenant, on his complying with certain conditions the right to become a tenant directly under the landlord ahd authorise the Rent Controller to pass necessary orders directing that the sub-tenant shall become tenant directly under the landlord from the date of the order. The sub-_tenant adopted proceedings under sectioh 16 of the Act against the superior landlord and in February, 1957, the Rent Controller held that the. sub-tenant was entitled to the declaration asked for over-ruling the: objections raised by the tenant. An appeal filed by the tenant against the said order was dismissed. Thereafter, the sub-tehant amended his written statement in the suit f.or eviction filed by the tenant against him and pleaded that the relationship Of the lahdlord and tenant between the tenant and the sulJ..tenant no lohger subsisted. The Munsiff dismissed the application for eviction filed by the tenant on the ground that in view of he order pa.ssed uhder the 1956 Act declaring the sub-tenanL to be a direct tenant under the landlord the relationship of landlord altd tenant between the parties ceased. In a revision, the High Court piaintained the order rejecting the application for evictioh but set aside the finding) that the relationship of the landlord a'f!d tenant between the tenant and the sub-tenant ceased. The High Court held that in spite of section 40 of the repealing Act, section 16(3) of the Repealing Act must be' given effect to. Tub High Court, however, took the view that the proceedings under section 16(3) having been initiated during the pendency of the suit the principle of lis pendens would apply and, accordingly, the <>Tiier under s. 16(3) would hot govern the suit.

In an appeal by special leave by the heirs ot the sub-tenant, the counsel for the respondent did not rely on s. 52 of the Transfer of Property Act but sought to support the decree Qn the ground that in view Of s. 40 of the Repeal'" ing Act the entire proceedihgs under s. 16 was without jurisdiction.

Allowin!? the appeal,

HELD : ( 1) The doctrine of Tis pe1idens can have no application to this H case. The doctrine of tis pendens means that no party to the litigation can aliehate the property in dispute so as to all'ect the other party and reatli upon the foundation that it would plainly be impoS"SibJ~ that any action or suit could be brought to a successful termination after alienation pendente lite. Section

5 of the .'J!ansfer of Property Act defines transfer of property as an act by which a hving person conveys property to another.

When the Legislature in exercise of its sovereign powers regulates or alters the rights Of landlord and tenant, what it_ does is not transfer of property attracting the doctrine of /is pendens. [599B, C-F]

(2) It is true that in view of s. 40 of the Repealing Act a pending proceeding may be cohtinued as if the Repealing Act was not passed. This, however, does not ll)ean that even if the 1'956 Act created a new right in favour Of the tepant, he would be denied this right because a suit for ejectment wag pendin~

against him when the Act came into force. The intention of the Legislature, which is para.mount, is clear to upgrade the sub-tenant and make him tenant directly under the superior landlord. A sub-tenant is a tenant with.ID. the meaning of s. 2(h) of the Repealing Act. Thus, the suit must continue under the

1950 Act but the right ac'l, uired by the sub-tenant under 1956 Act has to be given effect to and the smt decided accordihgly. Therefore, the relationship of landlord and tenant ceased between the parties on the date when the order under s. 16 was made. (599F-H, 600B-CJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1599 of 1968.

Appe:;! by Special Leave from the Judgment and Order dated the 16th February 1968 of the Calcutta High Court in Civil Rule No. l 030 of 1967.

D. N. Mukherjee and N. R. Chaudhury for the Appellants.

Sukumar Ghosh for the Respondent.

The Judgment of the Court was delivered by

GUPTA, J.

This appeal by special leave is directed against a Judgment of the Calcutta High Court setting aside in revision the finding of the trial court on the issue whether the relationship of landlord and tenant subsisted between the parties in a suit for ejectment. Th.e issue which arises on the interaction of two statutes, t)le West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and the West Bengal Premises Tenancy Act, 1956, which repeals the earlier Act but keeps it alive for proceedings pending on the date of repeal, involves the question,-is the right conferred on the sub-tenant by the 1956 Act of being declared a tenant directly under lhe superior landlord available to a sub-tenant against whom a suit for ejectment was pending when that Act came into force ? The appeal turns on the answer to this question.

The mate.rial facts leading to the impugned order are these. The respondent was a tenant of premises No. 17 /lE Gopal Nagar Road, Alipore, Calcutta, and his lan'.tlord was one Jagabandhu Saha, the owner of the ouse, Dllip Narayan. Roy Chowdhury was a sub-tenant under. the respondent in. respect of the ground,. floor flat paying a monthly rent Qf Rs. 75/-. The. respondent instituted a suit in the Munsifs court at Alipore on March 21, 1956 when the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 was in force, seeking to evict Roy Chouhury 011 .the. grpuru\; that he was a defaulter ip payment , of rent. This Act was a temporary statute due to expire on March 31, 1956, bilt on that date the West Bengal PremiEes Tenancy Act,_ 1~56 ws btpug~~ in.to. operatio11 repe, aling the

temp<>rary Act before it expired. The material part of section 40 of the f956 Act which repealed the 1950 Act is as follows :

"Repeal and savings.-(1) The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (in this section referred to as the said Act), is hereby repealed;

(2) Notwithstanding the repeal of the said Act :- B

(a) any proceeding pending on the 31st day of March, 1956, may be continued, or,

(b) x x x

as if the said Act had been in force and had not been repealed or had not expired : "

Section 16 of the 1956 Act confers on the sub-tenant the right to become a tenant directly under the landlord.

Sub-section (2) of section 16 provides inter-alia that where before the commencement of this Act, the tenant, with or without the consent of .the landlord, has sublet any premises either in whole or in part, the tenant and every sub-tenant must give notice to the landlord of such subletting within the prescribed period. Sub-section (3) of section 16 provides that in any such case where the landlord had not consented in writing or denies that he gave oral consent, the Rent Controller on an application made to him either by the landlord or the sub-tenant shall make an order declaring that the tenant's interest in so mnch of the premises as has been sublet shall cease and that the sub-tenant shall become a tenant directly under the landlord from the date of the order. The Rent Controller is also required to fix the rent payable by the subtenant to the landlord from the date of the order.

Sub-tenant Roy Choudhury served a notice under section 16(2) of the 1956 Act upon the superior landlord and applied under section 16(3) for being declared a tenant directly under him. On July 31, 1956 the Rent Controller recorded a finding on this application that Roy Choudhury was entitled to the declaration asked for overruling the objections raised by the respondent.

On February 23, 1957 the Rent Controller concluded the proceeding under section 16(3) by finally declaring that the sub-tenant was a tenant directly under the superior landlord with effect from that date, and fixing the rent payable by him. The appeal preferred by the respondent from this order was dismissed by the appellate authority.

In the meantime, on August 21, 1956 the respondent had made

, an application under section 14(4) of the 1950 Act in the suit for eviction which was pending.

Section 14(4) of the 1950 Act permitted the landlord to make an application in the suit for an order on the tenant to deposit month by month the rent at the rate at which it was last paid and also the arrears of rent, if any, and provided that . on failure to deposit the arrears of rent or the rent for any month within :a: the period prescribed for such deposits, the court would make an order striking out the tenant's defence against ejectment so that the tenant would be in he same position as if he had not defended the claim to

ejectment.

On this application the Munsif on September 26, 1956 directed the appellant to deposit a certain sum as arrears of rent and also rent month by month at the rate of Rs. 75/-. After the declaration of tenancy under section 16(3), Roy Choudhury was permitted to amend his written statement in the suit by adding a paragraph questioning the relationship of landlord and tenant between the respondent and himself. It is unnecessary to refer to the various proceedings in the snit that followed, in the course of which the High Court was moved more than once by either party.

On January 24, 1965 Roy Choudhury died and the present appellants were substituted in his place in the suit as his heirs and legal representatives.

On November 1, 1965 the Munsif framed an additional issue, being issue No. 9, which was as follows :

"Has the alleged relationship of landlord and tenant between the parties been determined by final orders dated 31-7-56 and 23-2-57 passed by the R. C. (Rent Controller) Calcutta in Case No. 243B of 1956 ?"

The Munsif took up for consideration the application under section 14 ( 4) and the additional issue No. 9 together and by his order dated February 20, 1967 found that the Rent Controller had jurisd[ction to pass the order under section 16 ( 3) declaring the defendant to be a direct tenant under the superior landlord, and that the relationship of landlord and tenant between the parties ceased by virtue of the order made under section 16(3). The additional issue No. 9 was accordingly decided in favour of the defendant and the application under section 14(4) of the 1950 Act was dismissed.

The plaintiff moved the High Court in revision against this order.

The revision case was disposed of on February 16, 1968, the learned Judge maintained the order rejecting !he application under section 14(4) but set aside the finding on issue No. 9 and held that "for the purposes of the'present suit for ejectment there is a relationship of landlord and tenant". The propriety of this order is cha1lenged by the tenant defendants.

In the course of his Judgment the learned Judge recorded the following findings :

(i) "The validity or the binding nature of the order under

sei; tion 16(3) of the 1956 Act cannot be challenged nor can it be found in this suit to be inoperative".

(ii) The rights arising out of a valid proceeding under section 16(3) cannot be overlooked in spite of the non-obstante clause in section 40 of the 1956 Act and the effect of the order under section 16(3) has to be considered in the suit.

(iii) As the proceeding under section 16(3) was started during the pendency of the suit, the principle underlying section 52 of the Transfer of Property Act should apply to this case and "the decision made in the proceeding under section 16(3) would not control the decision in the ejectment suit''.

' -(

It thus appears that the High Court was of the view that in spite of section 40 providing that a pending proceeding would continue to be governed by the provisions of 19 50 Act as if that Act had not been repealed or had not expired, the order made under section 16(3) of the 1956 Act must be given effect to.

The High Court however held that the proceeding under section 16(3) having been initiated during the pendency of the suit, the principle of !is pendens should apply and accordingly the order under section 16(3) would not govern the suit.

Before us, counsel for the respondent did not rely on section 52 of

th~ Transfer of Property Act, but sought to support the decree on the ground that in view of section 40, the entire proceeding under section 16(3) was without jurisdiction. The doctrine of !is pendens can of course have no application to this case.

Section 52 of the Transfer of Property Act forbids alienations pendente lite providing inter alia t.'iat the property forming the subject matter of a pending suit cannot be transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. The doctrine of lis pendens means that no party to the litigation can alienate the property in dispute so as to affect the other party, and rests "upon this foundation, that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail". [Observation of Turner L. J. in Bellamy v. Sabine, (1857) 1 D. & J. 566 (584) quoted with approval by the Privy Council in Faiyaz Husain Khan v. Munshi Prag Narain & Others, 34 I.A. 102

(105).] But a sub-tenant who avails of the provisions of section 16(3) which extinguishes the tenant's interest in the portion of the premises sublet and confers on the sub-tenant the right to hold the tenancy directly under the superior landlord, cannot be said to have alienated property pendente lite.

Section 5 of the Transfer of Property Act defines transfer of property as an act by which a living person conveys property to another.

When the legislature in exercise of its sovereign powers regulates the relations of landlord and tenant, altering or abridging their rights, what it does is not transfer of property attracting the doctrine of !is pendens.

As stated already, counsel for the respondent put his case on the provisions of section 40 of the 1956 Act.

According to him the snit must continue to be governed by the 1950 Act even after its repeal

in view of section 40, unaffected by the provisions of the 1956 Act.

Section 40 of the 1956 Act keeps alive a proceeding pending on the G l date when the 1950 Act was repealed as if it is still in force and has not been repealed.

This however does not mean that even if the 1956 Act created a new right in favonr of the sub-tenant, he would be denied this right because a suit for eject.men! was pending against him when the Act came into force. 'Tenant' as defined in section 2(h) of the 19 5 6 Act includes a person continuing in possession after the termination of his tenancy until a decree or order for eviction has H been made against him.

A sub-tenant is also a tenant, and when the order under section 16(3) was made no decree or order for eviction had been passed against him.

That being so, we do not see why he

600 SUl'IU!)(IB COURT RBl'OllTS [1976] SUl'l'LBMBNTARY

should not be entitled to the benef\t conferred by section 16 ( 3) . The intention of the legisl11ture, which is paramount, is clear-to upgrade the sub-tenant and make him a tenant directly under the superior landlord.

This is a new right given to the sub-tenant, and though the pem; jipg proceeding may continue to be regulated by the repealed statute in view of section 40, there is nothing in that section to suggest that the sub-tenant against whom a suit was pending will be denied this .additional right.

The High Court has held t_!he e.ffect of !h~ order under section 16(3) must be considered in the suit.

Thus the suit may continue in spite of the repeal of the 1950 Act, but the right acquired by the sub-tenant under the 1956 Act has to be given effect to and the suit decided accordingly. It must therefore be held that the relationship of landlord and tenant ceased between the parties on the date when the order under section 16(3) was made.

The appeal is allowed, the order of the High Court appealed from is set aside and that of the tria1 court restored.

The appellants will be entitled to their costs in this Court and in the High Court.

P.H.P.

Appeal allowed.

SAFALI ROY CHOUDHURY & ORS

AMARENDRA KUMAR DUTTA

P. N. BHAGWATI

A. C. GUPTA

S. MURTAZA FAZAL ALI, JJ.

Transfer of Property Act, 1882

Sec. 5

Sec. 2(h), 16 and 40

West Bengal Premises Tenancy Act

Section 40

Section 16

section 40

section 16(3)

section 16(3)

s. 16(3)

s. 52

Transfer of Property Act

s. 40

s. 16

Section

5

s. 40

s. 2(h)

s. 16

West Bengal Premises Tenancy Act, 1956

section 40

Section 16

section 16

section 16

section 16(2)

section 16(3)

section 16(3)

section 14(4)

Section 14(4)

section 16(3)

section 14

section 16

section 16(3)

section 14(4)

section 14(4)

section 16(3)

section 40

section 16(3)

section 16(3)

section 52

Transfer of Property Act

section 16(3)

section 40

section 16(3)

section 16(3)

section 16(3)

section 52

Transfer of Property Act

section 40

section 16(3)

Section 52

Transfer of Property Act

section 16(3)

Section 5

Transfer of Property Act

section 40

section 40

Section 40

section 2(h)

section 16(3)

section 16

section 40

section 16(3)

section 16(3)


) -

STATE OF ORISSA ETC.

ARUN KUMAR PATNAIK & ANR. ETC.

April 15. 197.6

[Y. V. CHANDRACHUD, V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.] &·

Orissa Srvice of Engineers Ruls, 1_941, r. 19(a) and (b)-Scope of-Tc111porary appointment on contract basts, if could be treated as temporary appoint- 1nent for absorption in rf(!gular cadre.

. a.nsfitution of India, 1950, Article 226-Service 1~1atters-Exercise of 7urisdrct1on by High Court after long delays of 12 years in abject disregard of consequences to service personnel-Propriety. c In Dece1nber, 1958, the appeUant was appointed by direct recruitment as 'temporary Assistant Engiileer on contract basis' for a periOd of three yicars' and he took charge on January 19, 1959. On March 14, :962, the Governntent, after consulting the Publi~ . Service. Commission and obtaining its concurrence passed an order regulans1ng the appellant's ser\· ice by absorbing him into the regular cadre .of an Assistant Engineer retrospectively from Jan 19, 1959, though ten1porarily.

On Nov. 15, 1968, he was confirmed as Assistant Engineer with effect from Feb. 27, 1961; in 1969, he was confirmed as an D Executive Engineer with effect from Dec. 2, 1967; and in 1973, he was promoted as Superintending Engineer. The respondent was appointed, also by direct rec, ruitment, on provisional basis on April 14, 1960 to act as temporary Assistant Engineer.

On Nov. 15, 1968,, he was also confirmed as Assistant Engineer but with effect from May 2, 1962; and in 1970, he was confirmed as Executive Engineer with effect from December 2, 1967. The respondent chaIIenged the appointment of the appellant as Assistant Engineer and his subsequent promotions and claimed seniority over hin1.

The High Court quasht:d the order absorbing the appellant into the regular cadre and the subsequent E promotions. holding the absorption to be contrary to the Orissa Service of Engineers Rules, 1941, and hence invalid.

Allowing the appeal to this Court,

HELD: (1) By r. 6 of the Rules, recruitment to the rank of Assistant Engineers can be made directly in compliance with rr. 8 to 15. The appellant satisfied everyone of the qualifications prescribed by these rules and \Vas selected by the Public Service Commission in accordance,,, with the rules. He F v1as recomn1iended by the Public Service Commission, unde1 r. 13 and. 1he recommendation was accepted by the Governor under r. 15': He was thereafter appointed as temporary Assistant Engineer on contract basis. But his: appointment was, in terms, on a te1nporary basis and the fact that he held his post on contract did not make his tenure other thah temporary.

The subsequent course of hiscareer, within the contractual period itself, shows that he was granted all the facilities and privileges which are available to employees in the

regular cadre, temporary or permanent, which are generally not available to con- G tractual c1np!oyees. He drew the same' pay as any o1her employee in the regular cadre of Assistaht Engineers and he was fitted into the same pay scale.

He drew no special benefitsr by reason of being on a contractual basis.

[64 DG; 65 BCl

(2) Under r. 19(a), persons appointed by direct recruitment" are required to be on probation for two years, and under r. 19(b), notwithstanding anything in cl. (a), when a temporary Assistant Engineer is selected for a permanent appointment to the service, the whole or part of the period of his tempo- H: rary service shall, if approved by the Governor, count towards the prescribed period of probation. In the present case, what the Govern1nent did was to count the appellant's temporary service from January 19 1 , 1959 to March 14, 1962, as it was enitied to do towa1rds his probationary period.

The

. o

State .Government selected him for pern1anent appoint.1nent as an Assistant Engineer and before doing so also obtained the concurrence of the Public Service Con1n1ission.

[65 F-G; 64 F]

.... .(3) The appellant's appointment as an Assistant Engineer on a temporary basis was thus inade on Januar);' 19, 1959, v,.hereas the respondent's appoint- 1nent to act was ntade on April 14, 1960.

All along their respective service careers extending over 13 years, the appellant \Vas recognised as senior. [66 CJ

Narayan Chandra Parida v. State of Orissa and I.L.R. [19]1] Cuttack 857, distinguished. ·

(4) The respondent is guilty of lachcs.

The appellant's appointment was gazetted on March 14, 1962.

On November 15, 1968, the appellant and the respohdent \\'ere confitmed as Assistant Engineers by a comrnon Gazette Notifi. cation which showed the appel1ant's confirmation as on February 27, 1961, and that of the respondent as on May 2, 1962.

And yet, till May 29 1973, \Vhen the v.•rit petitions were filed in the High Court, the respoi:dnt did nothing except to file a representation to the Government in June, 1970 and a memorial to the Governor in April, 1973. The High Court should not have exercised its extraordinary jurisdictiop in favour of the respondent who was un1nindful of his right& for 12 years and in utter disregard of coc.sequence:<S to other service personnel.

In June, 1974, the High Court set aside an appointn1ent of March, 1962, of a P'Crson who had, in meantime, risen to the' rank of Superintending Ehgineer.

[66 D-G] .

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1739 to 1742 of 1974. )

(Appeals by special leave from the judgment and order dated the 10-6-1974 of the Orissa High Court at Cuttack in O.J.C. '.'los. 462 and 463 of 1973).

G. Rath, Advocate General, Orissa, Gobind Das and B. Parthasarathi, for the appellants and respondent-2 in CAs 1739-41 /74.

V. S. Desai and Vinoo Bhagat, for respondent No. 1.

F The Judgment of the Court was delivered by

CHANDRACHUDr J.

This is a group of 4 appeals ansrng out of a judgment dated June 10, 1974 of the High Court of Orissa.

Civil Appeals Nos. 1739 and 1740 are filed by the State of Orissa while Civil Appeals Nos. 1741 and 1742 are filed by one T. C. Krishna Moorthy. Two writ petitions were filed in the Orissa High Court, one by Arun Kumar Patnaik and the other by Niranjan Mishra for quashing certain orders and notifications issued by the Government of Orissa in regard to Krishna Moorthy's appointment as an Assistant Engineer and his subsequent promotions to higher posts. Patnaik and Mishra challenged Krishna Moorthy's appointment and prayed that in any event they ought to be accorded seniority over him.

By an order dated December 11, 1958 Krishna Moorthy and two others were appointed as "temporary Assistant -Engineers on contract basis for a period of 3 years".

The appointments were made by direct recruitment on the recommendation of the Public Service Corn-

ORISSA r. A. K. PATNAIK (Chandrachud, J.) 61

mission which held a test and a viva voce examination in accordance with the Orissa Service of Engineers Rules, 1941. Krishna Moorthy took charge of the post on January 19, 1959.

On September 13, 1960 which was during the currency of the contractual period of 3 years, the Government of Orissa informed him that the question of absorbing him in the regular establishment of the State's Engineering.

Service will be taken up for consideration on his completion of 2 years of service and in case he was absorbed, his absorption would be given retrospective effect from the date of his first appointment as an Assistant Engineer. The Government of Orissa thereafter consulted the Public Service Commission and after obtaining its concurrence, it passed an order dated March 14, 1962 regularising Krishna Moorthy"s service by absorbing him in the regular cadre of an Assistant Engineer retrospectively from January 19, 1959. That order is Annexure Il to the Writ Petitions. On September 21, 1962 Krishna Moorthy was promoted as an Executive Engineer ( Annexure III) ; on November 15, 1968 he was confirmed as an Assistant Engineer with effect from February 27, 1961 (Annexure N); on May 12, 1969 he was confirmed a,<; an Executive Engineer with effect from December 2, 1967;·lmd on November 23, 1973 he was promoted as a Superin- tending Engineer (Annexure YII), Patnaik and Mishra challenged the validity of the orders at Annexures II, III, IV ... and VII to the writ petitions.

These are the relevant dates in regard to Krishna Moorthy's appointment.

In regard to the appointments of Patnaik and Mishra, it would be enough to recapitulate facts relating to Patnaik's appointment, because for the purpose of deciding these appeals there is no distinction between those facts and the facts of Mishra's case.

On April 14, J 960 Patnaik was appointed "on provisional basis to act as temporary Assistant Engineer" by direct recruitment, which was about a year and 4 months after Krishna Moorthy's initial appointment as a temporary Assistant Ep.gineer on contract basis. On November 15, 1968 Patnaik was confirmed as an Assistant Engineer with effect from May 2, 1962. (It may be recalled that by an order of even date Krishna Moorthy was confirmed as an Assistant Engineer with effect from February 27, 1961 .. ) On October 31, 1970 Patnaik was confirmed as an Executive Engineer with effect from December 2, 1967. (It may be recalled that Krishna Moorthy was confirmed as an Executive Engineer with effect from the same date viz., December 2, 1967 though by an earlier order dated May 12, 1969).

On June 19, 1970 Patnaik filed a representation to the State Government claiming seniority over Krishna Moorhy. On April 16, l 973 Patnaik filed a memorial to the Governor of Orissa for restoration of his seniority.

On May 29, 1973 Patnaik and Mishra filed writ petitions in the High Court questioning the validity of Krishna Moorthy"s absorption in the regular cadre by the order of March 14, 1962 as also his subsequent promotions and seniority. By a Judgment dated June JO, 1974 the High Court declared Krishna Moorthy's absorption by the notification of March 14, 1962 as invalid and quashed the notifications at Annexures II, III, IV and VII, thereby

A -also.· renderi_ng his promotions as Executive Engineer and Superintendmg Engmeer and his confirmation as an Assistant Engineer illegal.

Krishna Moorthy's seniority fell with his appointment.

The correctness. of the High Court's judgment is challenged in these appeals by special leave.

In exercise of the powers conferred by clause (b) of sub-sections

(1) and (2) of section 241 of the Government of India Act, 1935, the Governor of Orissa made rules for the regulation of recruitment to and the conditions of service, pay, allowances and pension of the Orissa Service of Engineers. These rules are called the Orissa Service of Engineers' Rules, 1941.

Rule 3 (b) defines a "Member of Service" to mean a servant of the Crown (now the State Government), appointed in a substantive capacity under the provisions of the Rules to a post in the cadre of the service.

The sanctioned strength of this Service consists under Rule 4 of one Chid Engineer, 2 Superintending Engineers, 7 Executive Enginees, 20 Assistant Engineers and 4 Assistant Engineers in leave and training reserve.

By rule 5 all first appointments to the service are ordinarily to be made to the rank of an Assistant Engineer.

Appointments to the rank of Chief Engineer, Superintending Engineer and Executive Engineer are to be made ordinarily by the Governor after consultation with the Public Service Commission by promotion from the next lower post.

Promotion is made by selection on the basis of merit and seniority but seniority of itself can confer no clairn to promotion.

Rule 6 provides that recruitment to the rank of Assistant Engineers shall be made partly by direct recruitment in accordance with rules 8 to 15 and partly by promotion in accordance with rules 16 to 18.

Rule 8 prescribes basic qualifications for appointment to any post in the Orissa Service of Engineers while Rule 9 prescribes further qualifications for appointment by direct recruitment. Rnk 10 requires the Public Service Commission to announce the number of vacancies to be filled by direct appointment and to invite applications from candidates eligible for appointment to the service.

Under the proviso to rule 10, temporary Assistant Engineers appointed on the recommn dation of the Public Service Commission are not required to compete with other candidates for permanent appointments when such vacancies arise.

By the same proviso temporary Assistant Engineers can, without further reference to the Public Service Commission, be appointed to permanent posts according to their seniority and record of service unless the Commission expressly specifies in any particular case that a candidate's case may be referred to them before the question of his permanent appointment is taken up.

Rule 12 requires the Public Service Commission to interview suifable candidates while rule 13 requires the Commission to prepare a list of selected candidates arranged in order of preference, the number of such candidates being ordinarily 1-1 /3 times the number of vacancies to be filled by direct recruitment.

The final selection of the candidates is to be made by the Governor under Rule 15 (a) from amongst those who have been included in the list submitted by the Commission or in respect of whom a report has been submitted in accordance with rule 14. The candi-

--

...

dates selected by the Governor are required by rule 15 (b) to submit A themselves for examination by a Medical Board.

Rule 19(a) provides that persons appointed by direct recruitment shall be on probation for 2 years while those appointed by promotion shall undergo a probation for one year, provided that the Governor may extend the period of probation in any particular case.

At any time during the probationary period, the Governor can dispense with B the service of any officer appointed by direct recruitment after a month's notice and he can likewise revert the promoted officer to his substantive appointment.

Rule 19(b) reads thus:

"Notwithstanding anything in sub-rule (a) when a temporary Assistant Engineer is selected for a permanent appointment to the service the whole of the period of his temporary service or a portion thereof, as the case may be shall II approved by the uovernor for this purpose, connt towards the presc•ibed period of probation.

Provided that such approval shall be given only ; n respect of a continuous period of temporary service under the Government of Orissa followed without a break by appointment in permanent service."

Rule 20 prescribes conditions for confirmation by providing that a probationer shall be confirmed in his appointment if he completes the. prescribed period of probation, if he has passed the prescribed departmental examination and if the Governor is satisfied that he

is fit for confirmation.

Rule 22 prescribes the pay scale for direct recruits to the cadre of Assistant Engineers.

Under this rule, the E period of probation counts for the purpose of increment unless the probation is extended on account of the probationer's failure to give a satisfactory performance. Under rule 26 (i), if officers are recruited by promotion and by direct recruitment in the same calendar year, the promotees are considered as senior to direct recruits irrespective of the dates on which they were appointed.

Rule 26(ii) provides that subject to provisions , of sub-rule (i), seniority of officers shall be F determined in accordance with the order in whfch their names appear in the list prepared by the Commission.

We are unable to accept the High Court's view which was also pressed upon us by the learned counsel appearing on behalf of Patnaik

and Mishra that Krishna Moorthy's appointment under the notification of March 14, 1962 was contrary to the rules and therefore he cannot be said to be a member of any of the cadres of the Orissa Service of Engineers.

By rule 3 (b), "Member of Service" means a servant of the Government appointed in a substantive capacity under !he provisions of the rules to a post in the cadre of the service. The first question to be considered is whether on March 14, 1962 Krishna Moorthy was appointed in a substantive capacity to a post in the cadre of the Orissa Service of Engineers and secondly, whether the State Government had the power under the rules to appoint him retrospectively with effect from the date of his initial appointment i.e. from Jannary 19, 1959.

A The impugned notification dated March 14, 1962 reads thus :

"Shri T. c .. K. Murty, Assistant Engineer, l'. H. who was appointed as such on contract basis with effect from 19-1- 1959 is appointed as a temporary A.E. in the regular Establishment of the P.H. Wing until further orders with effect from the same date."

The terms of this notification are too direct and simple to admit of more than one construction and accordingly we must proceed on the footing that on March 14, 1962 Krishna Moorthy was in fact appointed as an Assistant Engineer in the regular cadre of Assistant Engineers, , though with effect from January 19, 1959 being the date on which ' he had taken charge of his initial appointment as a temporary Assistant C Engineer on contract basis. The meaning and effect of the notification was never in doubt nor indeed the in.tention of the Government to regularise Krishna Moorthy's appointment so as to place him in one of the regular cadres of the Orissa Service of Engineers.

But then, did the State Government have the power under the rules to regularise Krishna Moorthy's appointment retrospectively ?

That is the real focus of controversy. While resolving this controversy one must disabuse one's mind of the apparently weighty consideration that Krishna Moorthy was appointed initially on a 'contract basis'.

By rule 6, recruitment to the rank of Assistant Engineers can be made directly but such recruitment must comply with rules 8 to 15. Krishna Moorthy satisfied everyone of the qualifications prescribed by this fasciculous of rules and that is undisputed. He was qualified under rule 6 and was eligible under rule 9 to he appointed as an Assistant Engineer in the regular cadre of the Orissa Service of Engineers.

Applications were duly invited by the Public Service Commission under rule 10 and Krishna Moorthy's application fulfilled the requirements of rule 11.

The Commission considered alt the applications and interviewed candidates who were suitable for the posts, as required by rule 12. Krishna Moorthy appeared for the test and the viva voce examination and was selected by the Public Service Commission.

His name appeared in the list of selected candidates prepared by the Commission under rule 13.

Rule 14 has no relevance.

The final selection of the candidates was made by the Governor, as required by rule 15, from amongst those who were included in the list submitted by the Commission under' rule 13. On his selection by the Governor, Krishna Moorthy was examined by the Medical Board as required by rule 15 and was found medically fit.

It was after due and full compliance with everyone of the conditions and formalities that his appointment as a temporary Assistant Engineer on contract basis was notified on Dec. 11, 1958.

The initial appointment of Krishna Moorthy being within the scope of and in conformity with the rules governing direct recruitments to the cadre of Assistant Engineers, the only question that requires consideration is whether the rules permit retrospective regularization of an 2ppointmcnt.

The terms of the initial appointment are relevant in

this behalf because though the appointment was on a 'contract basis', it was also expressly described as 'temporary'. In common parlance it may be incongruous to describe a contractual appointment as temporary, because the appointment is intended in the normal circumstances to last during the currency of the contract. But Service regulatioJLS have their own semantics and not unoften, not only are service rules technical but they have their own technical vocabulary. Krishna Moorthy's initial appointment must be construed on its own terms and therefore the adjective 'temporary' cannot be dismissed as :i. mere adjunct.

He was unquestionably and in terms appointed as an Assistant Engineer on a "temporary" basis and the fact that he held his post on a contract did not make his tenure other than temporary.

The subsequent course of his career, within the contractual period itself, shows that he was granted all the facilities and privileges which are available to employees in the regular cadre, temporary or permanent, and which are gener<!!lly not available to contractnal employees. He drew the same pay as any other employee in the regular cadre of Assistant Engineers and he was fitted into the same scale of pay. He drew no special benefits by reason of being on a contractual basis.

And when during the currency of the contract he wanted to apply for a post under the Union of India_, his application was not forwarded by the State Government for the reason that there was a "shortage of technical personnel in the State".

His appointment was thus made truly on a temporary basis ahd the question for consideration resolves itself into this : Can an appointment made on a temporary basis after compliance with the relevant rules be regularized retrospectively?

If Krishna Moorthy had not been recommended by the Public Service Commission, different consideri!(ions might have arisen. But he was recommended by the Commission, the recommendation was accepted by the Governor and the State Government appointed him as an Assistant Engineer on a temporary basis in pursuance of the Commission's recommendation and the Governor's selection.

This is where Rule 19 plays an important part.

Under clause (a) of that rule, persons appointed by direct recruitment are required to be on probation for 2 years.

Under clause (b) of Rule 19, notwithstanding anything in clause (a), "when a temporary Assistant Engineer is selected for a permanent appointment to the service, the whole of the period of !Jis temporary service or a portion threof, as the case may be shall if approved by the Government for this purpose, count towards the prescribed period of probation".

Krishna Moorthy was selected by the State Government for a permanent appointment as an Assistant Engineer and before implementing that decision, the State Government had obtained the concurrence of the Public Service Commission.

On such concurrence being obtained, the State Government issued the impugned notification dated March 14, 1962 appointing him as an Assistant Engineer, though temporarily and until further orders, with effect from January 19, 1959.

The Government had the power under rule 19 (b) to count any part of Krishna Moorthy's temporary service towards the prescribed period of probation and what it did was to count his temporary service from January 19, 1959

7-833SCin6

A till March 14, 1962 towards the probationary period.

He had by then put in more than three years' service whereas rule 19 stipulates a normal probationary period of 2 years only.

In view of these facts and considerations, it is impossible to accept the submission made on behalf of Patnaik and Mishra that Krishna Moorthy's appointment under the notification of March 14, 1962 is in any sense invalid.

Consequently, his subsequent promotions and the seniority accorded to hhn must also be upheld.

The decision in Narayan Chandra Parida v. State of Orissa and Ors.,(') on which reliance is placed to deprive Krishna Moorthy of his seniority has no application, as in that case the petitioner was ranked as a junior to a person who was not at all in Government service when the petitioner was appointed. In the instant case, Krishna Moorthy was appointed as an Assistant Engineer on a temporary basis on January 19, 1959 whereas Patnaik and Mishra were appointed on April 14, 1960 to act as Assistant Engineers on a provisional basis. All along their respective service careers, extending over 13 years, Krishna Moorthy was recognized as senior to the other two.

It is unnecessary to deal at length with the State's coutention that the writ petitions were filed in the High Court after a long delay and that the v.Tit petitioners are gnilty of !aches.

We have no doubt that Patnaik and Mishra brought to the Court a grievance too stale to merit redress.

Krishna Moorthy's appointment was gazetted on March 14, 1962 and it is incredible that his service-horoscope was not known to his possible competitors.

On November 15, 1968 they were all confirmed as Assistant Engineers by a common Gazette notification and that notification showed Krishna Moorthy's confirmation as of February 27, 1961 and that of the other two as of May 2, 1962.

And yet till May 29, 1973 when the writ petitions were filed, the petitioners did nothing except to file a representation to the Government on June 19, 1970 and a memorial to the Governor on April 16, 1973.

The High Court made light of this long and inexplicable delay with a casual remark that the contention was "without any force".

It overlooked that in June, 1974 it was setting aside an appoinbnent dated March 1962 of a person who had in the meanwhile risen to the rank of a Superintending Engineer.

Those 12 long years were as if writ in water.

We cannot but express our grave concern that an extraordinary jurisdiction should have been exercised in such an abject disregard of consequences and in favour of persons who were unmindful of their so-called rights for many long years.

For these reason we allow the appeals, set aside the judgment of the High Court and direct that the writ petitions shall stand dismissed.

Patnaik and Mishra will pay to Krishna Moorthy the costs of the pUitions and of these appeals which we quantify at Rs. 2000.

They will each pay a sum of Rs. 1,000. There will be no order as to the costs of the Government.

V.P.S.

Appeals allowed.

(1) l.L.R. 1971 Cuttack 857.

STATE OF ORISSA ETC

ARUN KUMAR PATNAIK & ANR. ETC

Y. V. CHANDRACHUD

V. R. KRISHNA IYER

N. L. UNTWALIA, JJ.

Article 226

Orissa Service of Engineers Rules, 1941

Orissa Service of Engineers Rules, 1941

section 241

Government of India Act, 1935


R. R, DALAVAI v.

STATE OF TAMIL NADU

May 7, 1976

[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]

Pension scheme to anti-Hindi agitators-Constitutidnal validity of-Conatitution of India, Article 351.

Budget sanction through Appropriation Act 38 ilf 1974 for payment of pen sion to anti-Hindi al!itators by an executive order is unconslitutional-Mad1as Budget Manual.

The appellant challenged the constitutional validity of the pebsion scheme of the dent.State by "1!ich the anti.Hindi agitators were to be paid pension from the Consolidated FUnd of the State. The High Court dismissed the writ holding that (!) the spirit and letter of Art. 351 was not violated and

(2) in view of the Appropriation Act 38 of 1974, the paym, m was not illegal.

Allowing the appeal by special leave, the Court

.WELD: (!) The pension scheme formulated by the Tamil Nadu Govern meot contains the -vice of disintegration and , fomenting fissiparous tendencies.

If any State will be eni'\ged in exicting emotion against Hindl or any other languag_e, such provocation has to be nipped in the bUd becanse these are anti. national and anti-democratic tendencies. [602C-DJ

(2) There is no legislative sanction ih the instant case for such pension scheme. 1be Government by an executive order could not authorise payment of pension scheme. The pension scheme is unconstitutiona) and the Budget sanction is equally unconstitutional. [6020-EJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1116 of 1975.

Appeal by Special Leave from the Judgment and Order dated 21st January, 1975 of the High Court of Madras at Madras in Writ Petition No. 3962 of 1972.

Petitioner in person; for the Appella'at.

A. V. Rangam and (Miss) A. Subhashini; for the Respondent.

The Judgment of the Court was delivered by

RAY, CJ. This 'dppeal is by special leave from the judgment dated G 21 January, 1975 of the Madras High Court.

The appellant made an application under Article 226 challenging the, power of the GovernmetM of Tamil Nadu to grant of pension to Anti-Hindi agitators.

The appellant further challenged the power of the State to make payment from the Consolidatect Fund of the State Exchequer.

Article 351 of the Constitution says that it shall be the duty of the Union Government to promote the spread of the Hindi language to

SUPREME COURT REPORTS

(1976] SUPPLEMENTARY

A drvclop so that it may serve as a medium of expression for all the elements of the cmposite culture of our country.

The appellant contended that the sprrit and letter of Article 351 is violated by the Pension Scheme of the Tamil Nadu State.

The appellant said that the agitators who brought about violence broke the law and were honoured by the pension scheme of the State.

B The High Court said that the State Legislature has control over

purse and that in the view of the State Legislature the agitators against Hindi fought for a cause and, therefore, those who are eligible should be granted pension.

The High Court found tLat if a scheme is provided which is not destructive of the Directive Principles but aimed at ameliorating those who the legislature thought deserve that treatment Article 351 was not violated.

The High Court found that because of Appropriation Act No. 38 of 1974 it could not be said that payment was illegal.

In our opinion the pension scheme formulated by the Tumil Nadu Government c<Yntains the vice of disintegration and fomenting fissiparous tendencies. If any State will be engaged in exciting emotion against D Hindi or any other language such provocation has to be nipped in the bud because these are anti-national and anti-democratic tendencies.

The Madras Budget Manual 4th Edition was referred to by the appellant.

The appropriation in the present case shows that a fund was kept apart to meet the pension scheme.

There is no legislative sanction for such pension scheme. The Government by a1n executive E order could not authorise payment of pensiou scheme. The appellant is right in his contention that the pension scheme is unconstitutional and the budget sanction is equally unconstitutional.

For these reasons the judgment of the High Court is set aside.

A mandamus will go directing the responde',1t to forbear from implementing the pension scheme. The State will be competent to claim refund of moneys illegally and unconstitutionally paid.

The appellant is entitled to costs to be paid by the State.

S.R.

Appeal allowed

R. R, DALAVAI

STATE OF TAMIL NADU

A. N. RAY, C.J.

M. H. BEG

JASWANT SINGH, JJ.

Article 351

Art. 351

Article 226

Article 351

Article 351

Article 351


STATE OF HARYANA

I'.

INDER PRAKASH ANAND H.C.S. & OTHERS

May 7, 1976

fA. N. RAY, C.J., R. S. SARKARIA, P. N. SH!NGHAL AND

JASWANT SINGH, JJ.]

Constitution of India, 1950, Art. 235-Power to compulsorily retire-Whether vests in the lligh Court or Governor-Control, nature and scope of.

The respondent was officiating as Additio.nal Distric! & ssions. Jude. On a reference to the High Court whether he should be retained m service till the age of 58 or should be retired at the age of 55, the High Court recommended that he should be reverted to his substantive post of Senior Subordinatr Judge but that he should be allowed to continue in that post till the age of 58. The State Government reverted him but retired him fro.m service at 55 under r. 5.32(c) Punjab Civil Service Rules. The rule stats that a retiring pension is granted to a Governn1ent servant who is retired by the appointing authority on or after he attains the age of 55 by giving him 3 months notice. The High Court quashed the order of retirement.

Dismissing the appeal to this Court,

HELD: ( 1) Article 235 vests in the High Court control over district courts

and courts 'subordinate thereto. The control includes both disciplinary and administrative iurisdiction.

Disciplinary control means not merely jurisdiction to award punishment for misconduct, but also the power to determine wh_ether the record of a member of the service is satisfactory or not so as to entitle him to continue in service for the full term till he attains the age of superannuation.

Administrative, judicial and disciplinary control over members of the judicial E sevice is vested solely in the High Coll.rt.

Premature retirement' is fil<!.de in the exercise of administrative and discipJinary jurisdiction. It is administrative be~ cause it is decided in public interest to retire him prematurely and it is discipli~ nary, because, the decision is taken in public interest that he does not deserve to continue up to the normal age of superannuation. The fixation of the age of superannuation is the right of the State Government. The curtailment of that period under rules governing the conditions of service is a matter pertaining to disciplinary control as well as administrative control. [605G-H; 606H-607C]

State of West Bengal v. Nripendra Nath Bagchi [1966] I S.C.R. 771 and High Court of Punjab and Haryana etc. v. State of Haryana (Sub nom Narendra Singh Rao) [1975] 3 S.C.R. 365, followed. ·

(2) The control which is vested in the High Court is complete control subject only to the power of the Governor in the m_atter of appointment, dismissal, removal or reduction in rank and the initial posting of and initial promotion to District Judges. The vesting of complete control over the subordinate judiciary in the High Court, leads to this that if the High Court is of opinion that a particular officer is not fi~ to retained in service, the High Court will communicate that opinion to the Governor, because, the Governor is the authority to dismiss, remove or reduce in rank or terminate the appointment. In such cases, the Governor, as the head of the State, will act in harmony with the recommendation of the High Court as otherwise the consequences will be unfortunate. [605H,

606AG, H: 607E-F]

(3) But, compulsory retirement simpliciter does not amount to dismissal or ren1ova1 or rcdu, tion in rank under Article 311 or under service rules. When a H case is not of removal or dismissal or reduction in rank, any order in respect of exercise of control over the judicial officers is by the High Court and by no other authority; otherwise, it will affect the independence of the judiciary. [605F-G; 60iC]

Shy?m Lal v. State of Uttar Pradesh [1955] I S.C.R. 26; Da/ip Singh v. State of Pun1ab [1961] I S.C.R. 88; Tara Si11gh v. State of Rajasthan [1975] 4 S.C.C. 86; B. Venkateswararao Naidu v. Union of India [1973] l S.C.C. 361 and Shamsher Singh cl Anr. v. State of Punjab [1975] I S.C.R. 814, followed :

( 4) It is not corect o ~ntend that the Governor and not the High Court has the power to retire a 1ud1c1al officer compulsorily under s. 14 Punjab- General Clauses Act.. The suggestion that the High Court reCommends and the State Gover!1fllent implements the recommendation in the matteiof cOinpulsorY-i-ffire- !Ilent 1s to dstroy the control of the High Court. It is Only the order terminattpg the appointment of a member of the service otherwise than upon his reaching the age of superanouation that will be passed by the State Government on the recommendation of the High Court. [606C-D, G-H]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2454 of 1972.

C Fro~ the Judgment and Order dated the 1 Sth December, 1971 of the Pun)llb and Haryana High Court at Chandigarh in Civil Writ Petition No. 2604 of 1971.

'.D

L. N. Sinha, Solicitor General, Naunit Lal, R. N. Sachthey for the .appellant.

Anand Swarup, Harbans Singh Marwah for Respondent No. 2.

Ashok Grover; for Respondent No. 1.

The Judgment of the Court was delivered by

RAY, C.J.

This appeal is by certificate from the judgment dated 18 November, 1971 of the Punjab and Haryana High Court.

The respondent joined the Punjab Civil Service, (Executive Branch) in November, 1954.

He was selected for the Judicial Branch of the Punjab Civil Service on or about 1 May, 1965. On 15 November, 1968 he was promoted as officiating Additional District and Sessions Judge.

The respondent was due to attain the age of 55 years on 24 February, 1971.

His case was referred to the High Court for their recommendation whether the respondent should retire at the age of 55 years or he should be retained in service till the age of 58 years which is the prescribed age of superannuation under the Punjab Civil Service Rules.

The High Court was of opinion that the work of the respondent. as Additional District and Sessions Judge was not satisfactory.

The High Court was not inclined to recommend the respi5ndent's continuance in Superior Judicial Service up to the age of 58 years.

The High Court recommended that the respondent should be reverted to his substantive post of Senior Subordinate Judge/Chief Judicial Magistrate and that he might be allowed to cotinue in service till the age of 58 years.

The State Government agreed with the recommendation for reverting the respondent from the post of Additional District and Sessions Judge to the Senior Subordinate Judge/Chief Judicial Magistrate. With regard to the retention of the respondent in service up to the age of 58

years the Stiite iigain asked the High Court to c_onsider whether in view A of th, e respondent's work ai; Additional District and Sessions Judge; Hissar, having been found to be unsatisfactory, the respondent should be retained at all in service beyond the age of 55 years.

The State Govrmment suggested that it was in public interest to retire the respondent at the age of 55 years.

The High Court did not agree with the suggestion. By letter dated 16 August, 1971 the High Court reiterated that the respondent might continue in service up to the age of 58 B: years. The State Government did not agree with the recommendation of the High Court and decided to retire the respondent under Rule 5 .32 ( c) of the Punjab Civil Service Rules.

A notice was issued to the respondent on 20 August, 1971 giving him notice of three months on the expiry of which he would retire from service.

The respondent filed a writ petition in the High Court impeachin~ the notice dated 20 August 1971. The matter was heard by a Bench of three learned Judges. The order retiring the respondent from service WM quashed by the majority opinion.

The question is whether the State Government could compulsorily retire a Senior Subordinate Judge cum Chief Judicial Magistrate under rule 5.32 (c) of the Punjab Civil Service Rules against the recommendation of the High Court.

This Court in Shyam Lal v. State of Uttar Pradesh(') held that compulsory reitrement does not involve stigma or any implication of mis-behaviour or incapacity.

In Dalip Singh v. State of Punjab(') this Court held that in order to find out whether an order of compulsory retirement is or is not by way of punishment, is to find out whether a charge of imputation against the officer is made the basis of the exercise of power iind second whether the officer is deprived of any benefit already earned.

In the recent decision in Tara Singh v. State of Rajasthan(') this Court, held that compulsory retirement is not a punishment because the officer does not lose the terminal benefits already earned by him.

B. Venk{lfesivararao Naidu v. Union of lndia(') this Court held that F ;:_ compulsory r.etire!llllnt does, not involve civil consequences.

It, therefore, follows that compulsory retirement simp/iciter does not amount to dismissal or removal or reduction in rank under Article .. 311 or under the Service Rules. It is in fact com.Pulsory retirement in accordance with the terms and conditions of service.

The decision~ of this.Court'irt State of West Bengal v. Nripendra G, Nath Bagchi(}') and High Court of Punjab ant! Haryana etc. v. State o/Haryana (S1'b.nom Narendra Singh Rao).(6 ) are that Article 23 5 ve$ int~ High Court.• control over District Courts" arid courts suborpi@te, th!lreto. TheGovernor appoints ai!d dismisses' and removes Judicial Officers.

Control which ]s• vested in tfil)• Hli' Court

~ is complete control subjt only to the po\\'.ef.p~, the.0<1vernpr. in the UJ __ ._.:. _____ ._' . i" ' ' .·\ ,; (l)[l955Jf S.C'.R.2•.

(4) [1973} 1S.c.c.361

(2) [19611IS.C.R.88.

(3) [197514 S.C.C. 86.

(6) [1975]3 S.C.R. 365.

matter of appointment including dismissal, removal, reduction in rank and the initial posting and of the initial promotion to District Judges.

There is nothing in Article 235 to restrict the control of the High Court in respect of Judges other than District Judges in any manner.Article 311 has taken away the power of dismissal or removal or reduction in rank from the High Court and the Governor has been given that special power referred to in Article 311 ( 3) .

This Court in Shamsher Singh & Anr. v. State of Pun1ab(') held that when a case is not of removal or dismissal or reduction in rank any order in respect of exercise of control over the Judicial Officers is by the High Court and no other authority.

There cannot be dual control.

If State Government is. to have the power of deciding whether a Judicial Officer should be retained in service after attaining the age of 55 years up to the age of 58 years that will seriously affect the independence of the judiciary and take away the control vested in the High Court.

Compulsory retirement is neither suspension nor dismissal nor removal nor reduction in rank.

It is unsound to contend that the Governor and not the High Court has the power to retire a Judicial Officer compulsorily under section 14 of the Punjab General Clauses Act.

The suggestion that the High Court recommends and the State Government is to implement the recommendation in the matter of compulsory retirement is to destroy the control of the High Court.

The Punjab Civil Service Rules in Rule 3.26(a) deals with compulsory retirement at the age of 58. Rule S.32(c) deals with retirement at the age of 55.

Two relevant rules in the Punjab Civil Service Rules in the present case are these.

Rule 3.26(a) states that the date of compulsory retirement of a Government servant other than a Class IV Government servant is the date on which be attains the age of 58.

Rule 5.32(c) states that a retiring pension is granted to a Government servant who is retired by the appointing authority on or after he attains the age of 55 years by giving him not less than three months' notice.

This Court in Bagchi's case (supra) said that control vested in the High Court is over the conduct and discipline of the members of the Judicial Service.

Orders passed in disciplinary jurisdiction by the High Court are subject to an appeal as provided in the conditions of service.

The High Court further deals with members of the judicial service in accordance with the rules and conditions of service. This Court in Bagchi's case (supra) said that the word "deal" points to disciplinary and not merely administrative jurisdiction. The order terminating the appointment of a member of the service otherwise than upon his reaching the age fixed for superannuation will be passed by the State Government on the recommendation of the High Court.

This is becanse the High Court is not the authority for appointing, removing, reducing the rank or terminating the service.

It is true that the fixation of the age of superannuation is the right of the State Government.

The curtailment of that period under rule

(I) !19751IS.C.R.814.

governing the conditions of service is a matter pertaining to disciplinary A control as well as administrative control. Disciplinary control means not merely jurisdiction to award punishment for misconduct.

It also embraces the power to determine whether the record of a member of the service is satisfactory or not so as to entitle him to continue in service for the full term till he attains the age of superannuation. Administrative, judicial and disciplinary control over members of the Judicial Service is vested solely in the High Court: Premature retirement B is made in the exercise of administrative and disciplinary jurisdiction.

It is administrative because it is decided in public interest to retire him pre-maturely. It is disciplinary because the decision was taken that he does deserve to continue in service up to the normal age of superannuation and that it is in the public interest to do so.

This Court held in State of Assam v. Ranga Mahammad and Ors.(') C that the Governor under Article 233 is concerned wiili the appointment, promotion and posting to the cadre of District Judges but not with the transfer of District Judges already appointed or promoted and posted to the cadre.

This Court has held in the Punjab and Haryana case

(supra) that the confirmation of District Judges is to be done by the High Court because it falls within the control vested in the High Court.

The High Court is acquainted with the capacity of work of the mem- D bers of the Service.

In the Punjab & Haryana case (supra) this Court pointed out that if after the appointment of District Judge till he is confirmed the State is allowed to control the District Judge there will be dual control.

This is not the meaning of "control" in our Constitution.

The control vested in the High Court is that if the High Court is E of opinion that a particular Judicial Officer is not fit to be retained in service the High Court will communicate that to the Governor .because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment. In such cases it is the contemplation in the Constitution that the Governor as the head of the State will act in harmony with the recommendation of the High Court. If the recommendation of the High Court is not held to be binding on the State F consequences will be unfortunate.

It is in public interest that the State will accept the recommendation of the High Court.

The vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State. "The Government will act on the recommendation of the High Court.

That is the broad basis of Article 235".

See Shamsher Singh's case (supra) at page 841.

. In the present case, the order of the State retiring the respondent from service after the expiry of three months from the date of the order 20 August, 1971 has been rightly quashed by the High Court.

The High Court did not make any recommendation to that effect .

. The appeal is, therefore, dismissed' with costs.

V.P.S.

Appeal dismissed. -----------

(1) (1967) I S.C.R. 454:

STATE OF HARYANA

INDER PRAKASH ANAND H.C.S. & OTHERS

fA. N. RAY, C.J.

R. S. SARKARIA

JASWANT SINGH, JJ.

Constitution of India

Art. 235

Punjab Civil Service Rules

Article 235

[1975] 3 S.C.R. 365

Article 311

s. 14

Punjab- General Clauses Act

Article 23

Article 235

Article 311

Article 311

section 14

General Clauses Act

Article 233

Article 235