STA'll!: OF PUNJAB a AN1L

SHRI SlJKH RA1 BAii;\ DUR

February 22, 1968 [], C. SHAH, V. RAMASWAMI AND G. K. MiTTEll; 11:]

Civil Service-Completion of probation-If probationer •ntltld to tub-· stanllve oppointment-Reversiun to sub.rtanti•• par,,__Whon O/J!Utllts "' punishment. The respondent who was a permanent oJ!icial in the Delhi Administra lion was appointed to the Punjab Civil Service (I!Xecutive Blanch). He was on probation in the new post for a period of 18 mootba mbject to ex tension of the period and subject to his completing training; He passed all the departmental examinations. The periDd of probation expired in 1uly 1954, and there was no i; xtension of it. In January 1957, he received a charge-oheet with a Jetter from the Anti-Corruption Department liskin1!: him to reply to the charge sheet and to state whether he would like to be lioard in person. 'The respondent replied that he wanted an opportunity of being heard in person. There was however no enquiry at all, and much later, by an order dated 23/26th May 1958, the Punjab Government reverted him to his substantive post in the Delhi. Administration without making any reference to the charges.

The respondent thereupon challenged the order on the grounds namely : ( 1) that on the expiry of the period of probation and on his passing the departtnental exarilinations he became entitled to a substantive permanent

appointment; (2) that the impugned order terminated his servioe under the Punjab Government and removed him from the said service, in viola• tion of the provisions of Art. 311 (2) of the Constitution; and (3) under r. 9 of the Punjab Civil Services (Punishinent and Appeal) RUies, 1952, it was mandatory that, before his employment as a probationer could. be terminated, he should have been apprised of the grounds of the proposed termination and given an opportUnity to show cause against it.

The High Court accepted the second contention and allowed the petition.

In appeal to thiS Court,

HELD : (1) Merely because the respondent had passed all the depart mental examinations and completed the period of probation fixed, ho could not be considered to be holding the post substantively, or as being entitled to it. [239 E-FJ

(2) The J'OllpODdent could not complain againat the order reverting G him to his form..- post because, the order of reversion was not by way of puni5h!nent. [239 Fl The cil'cwmtante$ preceding or attendant on the order of termination of service of a public servant have to be examined in each case, for deter mining whether the order was by way of punishment. The mot!\" behind it is immaterial. It is only in a case wliether either of the two tests, namely, (a) , Whether the public servant had a right to the post or rank, or (b) wbedier the public servant, no matter whether he WD a pi; obationer R or a temporary llOl'Vilnt, has been visited with evil' consequences.· or an aspersion baa been cast on his character or integrity, that the order could be il8id to be by way of' punishment. BiJt !lie serviCes of a temporacy

• .

PUNJAB v. SUXH llAJ (Mitter, 1.) 235

servant or :a probationer can be terminated under the rules of his employment and such termination without anything more, \\ill not attract the operation of Art. 311. [240 A; 244 A-B, C.D]

Parshotam Lal Dhingra v. Union of India, (1958] S.C.R. 828, State of Orissa v. Ram Narayan Das, [1961] 1 S.C.R. 606, R. C. Lac, y v. State of Bihar, C.A. No. 590 of 1962 dated 23-10,63, A G. Benjamin v. Union of

lndi<.·, CA. No. 1341/66 decided on 13-12-66, followed.

Gopi Kishore Prasad, A.l.R. 1960 S.C. 689 and Jagdish Mitter v. Union of India. A.I.R. 1964 S.C. 449, referred to . ..

(3) As the High Court had not considered the contention of the respondent based on r. 9 of the Punjab Qvil Services (Punishment and Appeal) Ruks, J 952, the matter should be remanded to the High Court for consideration of that question. [244 HJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 433 of 1965.

Appeal from the iudgment and order dated January 7, 1963 of the, Punjab High Court in Letters Patent Appeal No. 157 of 1957.

Vikram Chand Mahajan, R. N. Sachthey and S. P. Nayar, for the appellants .

Sardar Bahadur, Arub B. Saharya, Vishnu B. Saharya and Youginder Khushalani, for the respondent.

The Judgment of the C2urt was delivered by Mitter, J. This appeal is by a certificate granted by the Punjab High Court under Art. 133 of the Constitution against its judgment and order dated January 7, 1963 in Letters Patent Appeal No. 157 of 1959 reversing a decision of a single Judge of that Court who had dismissed a writ petition filed by the respondents on 'June 7, 1958 to declare that the order of the first appellant reverting him to his permanent post in the Delhi Administration was invalid and to quash the same.

The facts laid in the writ petition are as follows.

The petitioner, Sukh Raj Bahadur, respondent herein was a permanent official of the office of the Chief Commissioner, Delhi. On Decem- Oer 9, 1952 he was accepted as a candidate for the post of Extra Assistant Commissioner on the Register A~II of the Punjab Government along with two otliers, on the advice of the Punjab Public

Service O>mmission. He was posted as Inspector, Local Bodies, Jullundur Division and Assistant to Commissioner, Jullundur Division.

Later on, he acted as Personal Assistant to the Deputy Commissioner, Amritsar. On being relieved from the Delhi State Government on January 15, 1953 he assumed charge of the post of Personal Assistant to the Deputy Commissioner, Amritsar in the P.C.S. (Executive Branch Cadre) on January 24, 1953. He passed all the departmental examinations prescribed under rule

236 SUPlWll! ~T Ul'Ol.TS

(1968] 3 S.C.R.

21 of the Punjab Civil Service (Executive Branch) Rules, 1930.

Under r. 22 of the aforesaid rules, he was to remain on proba tion for a period of 18 months subject to his completing the training and subject to further extension of the period of probation as the case may be. In his case, the period of probation expired in July 1954. '.J'he same was however not extended by any order of the Governor of Punjab. The petitioner claimed that Jlllder r. 24 of the said rules he became qualified for substantive permanent appointment to the P.C.S. (Executive Branch).

He , received a charge sheet with a letter dated January 14, 1957 from the Secretary to the Government of PJllljab, Anti-Corruption Department, asking him to reply to the charge sheet within a fort night and to inform whether he would produce defence or whether he would like to be heard in person. The petitioner replied to the charge sheet on January 28, 1957 stating that he wanted an opportunity of being heard in person. By order of the Punjab State dated 23/26th May 1958 puxporting to be one Jlllder r. 23 of the aforesaid rules, he was reverted by the Punjab State Government to his substantive post of Superintendent under the Chief Secretary, Delhi Administration with immediate effect.

According to the petitioner, the said order of 23 /26th May 1958 terminated his service under the Punjab State Government and permanently removed him from the Punjab Civil Service.

The petitioner also complained that under r. 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, he should have been apprised of the grounds to terminate his employment as probationer for any specific fault or on account of any unsatis factory record or unfavourable reports implying his unsuitability for service and given an opportunity to show cause against the

sme, before any orders were passed by th~ authority competent to terminate the appointment. The petitioner was never apprised of the grounds of any such proposal nor given an opportunity to show cause against it before the order reverting him to the post of Superintendent mentioned above was made.

There was thus a clear breach of r. 23 of the Punjab Civil Service (Executive Branch) Rules.

Accordinly the petitioner prayed that the said order of 23/26th May 1958 be quashed and suitable relief be given to him.

The order complained of runs as follows :- "The Governor of Punjab is pleased to revert Shri Sukh Raj Bahadur, Extra Assistant Commissioner, officiating, from P.C.S. (Executive Branch) to the post of Superintendent under the Chief Secretary, Delhi Administration, with immediate effect." In the written statement of the respondents to the petition it was stated that the impugned order was not a penalty calling for compliance with the provisions regarding penalty etc. and the

PUN.JAB v. SUKH RA.J (Mitter, .J.) 237

Punjab Civil Services (Punishment and Appeal) Rules were not applicable. It was submitted that he was appointed to the Punjab Civil Service (Executive Branch) as a nominee of the Chief Commissioner, Delhi, who was one of the nominating authorities under r. 8 of the Punjab Civil Service (Executive Branch) Rules, 1930 along with some of the officers of the Punjab Government. By passing the departmental examinations in November 1956, the petitioner was due for confirmation thereafter.

The absence of confirmation implied that the probationary period was extended under r. 22(c) of the Punjab Civil Service Rules. Lastly, it was said that the reversion of a probationer to his substantive rank could not amount to a punishment.

It is not necessary to examine the charges which were levelled against the petitioner in the charge sheet. Suffice it to say that they were all of a fairly serious nature.

The points put forward before the learned single Judge who heard the petition were :

(l) On the expiry of the period of probation and on his passing the departmental examinations, the petitioner became qualified for substantive permanent appointment.

(2) The impugned order in fact terminated Ins services under the Punjab State Government and removed him from the said service. The petitioner was not afforded any opportunity to show cause against the charg.es contained in the charge sheet or against the proposed punishment.

As such there was violation of the provisions of Art. 311 (2) of the Constitution.

(3) The petitioner being a probationer, r. 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 was applicable. The procedure prescribed by the rule was not followed although it was mandatory that before his employment as a probationer could be terminated, he should have been apprised of the grounds of the prop.osed termination and given an opportunity to show cause agamst it .

. The learned single Judge held that the Petitioner had not acqmri:d the status of a permanent member of the Punjab Civil Service merely by efflux of time and by reason of his having passed the epartmenta! examinat!os. He futher held that the petitioner contmued only m an officiatmg capacity. The second point also

wa~ turned down by th.e learned Judge holing_ that the petitioner's case was one of revers10n and not of termmatton of service as the

petiti?er wa.s never ai;>pointed in a permanent capacity and was not VlSlted with any evII consequences. In comin~ to this conclusion the learned single Judge relied, on several decisions starting from the case of Parshotam Lal Dltingra v. Union of India(').

(Il [I968J s.c.~. 828.

(1968] 3 S.C.R.

The learned single 1 udge examined the third point at some length. It was urged before him that the petitioner did not fall within the definition of a 'probationer' in rule 2.49 of the Punjab Civil Service Rules, Volume I, Part I. On behalf of the petitioner, reference was made to the definition of 'Government' contained in r. 2.24 of the Punjab Civil Service Rules and the definition of 'cadre' contained in r. 29 and "it was submitted that if the petitioner had held a substantive post in a cadre under the Punjab Government and had been appointed on probation to another post, then the term 'probationer' would not have. covered his case, but since the petitioner held a lien on a post in Delhi State and . not under the Punjab Government, he could not be deemed to fall within the exception contained in the definition of a 'probationer' in r. 2.49." Reference was made to a number of other rules on behalf of both the parties. Ultimately, on examination of the respective contentions of the parties, the learned Judge concluded that the petitioner "could not be regarded as a probationer within the meaning of r. 2.49 of the Punjab Civil Service Rules" and "he could not claim the benfit of r. 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952." He however did not think it necessary to decide whether in the presence of r. 23 of the Punjab Civil Service Rules the Punishment and Appeal Rules would apply at all. Further, even if the said rule applied, the petitioner did not fall within the meaning of the word 'probationer' as given in rule 9. The learned Judge was of the view that there was force in the contention that r. 9 of the Punishment and Appeal Rules could not cover the case of revision as r. 9 only dealt with a case where it was proposed to terminate the employment of a probationer. In the result, he dismissed the application.

The appeal was allowed by the Letters Patent Bench. It appears that the Bench examined only the second point urged before the learned single 1 udge and over-ruling his decision allowed the appeal quashing the ol:der reverting the writ petitioner from the P.C.S. (Executive Branch). The Bench relied principally on the judgment of this Court in Madan Gopal v. State of Punjab(') and The State of Bihar v. Gopi Klshore Prasad('). According to the Bench the enquiry started with a notice which expressly stated that it was being made under sub-r. (2) of r. 7 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952. Sub-r. (1) of r. 7 provided that an order of dismissal, removal or reduction shonld not be passed unless the person concerned had been given reasonable opportunity of showing cause against the action prooosed to be taken in regard to him while sub-r. (2) laid down the manner in which the enquiry was to be held. From this the Bench inferred that:

(1) (1963] 3 S.C.R. 716.

(2) A.l.R. 1960 S.C. 689.

' I f

A "When the c_harge sheet was sent to the appellant (writ petitioner), the object and the intention of the State Government was to punish him either by way of dismissal or removal or reduction in rank, . . . .

Such an enquiry and any action consequent on such an enquiry would not be covered by principle of Ram a N flT, ayan Das' s case, as laid down by the Supreme COurt

in Madan Gopal v. The State of Punjab & others(').".

The Bench however observed that altliough no enquiry in the proper sense of the word had been held the omission to hold such an enquiry could not be made a ground for saying that the case difiered in principle either from Gopi Kish_ore Prasad's(2 ) case or Madan Gopafs(') case. Accordingly the conclusion reached was that "the reversion of the appellant was by way of punishment and amounted either to reduction in rank or removal from the P.C.S. (Executive Branch)" and as "these actions could not be taken without affording the appellant, adequate opportunity of showing cause against the punishment" there was violation of Art. 311 (2) of the Constitution.

We find ourselves unable to accept the reasoning or the conclusion arrived at by the learned J udgcs of the Division Bench of the Punjab High Court. It is not necessary to examine in detail the earlier decisions of this Court which bear on the issue before us. In this case, the respondent did not cease to be a probationer at the time when the impugned order w&s passed on him. Although the period of probation was fixed at 18 months and although the respondent had passed all the departmental examinations, he could not merely, as a consequence thereof, be considered to be holding a post substantively. Apart from the question as to the right of the respondent under the Punjab Civil Service Rules, the respondent could not complain merely because he had been reverted to the post formerly held by him. He would have cause to complain if he could show that the order of reversion was by way of punishment. As was pointed out in Parshotam LalDhingra's(8 ) case.

"The mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules the ricrht to reduce him to a lower' post does not mea~ that an~ order ?f reduct?on of a servant to a lower post or rank cannot m any c1Tcumstances be a punishment.

The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. . . . . the court has to apply the two

(I) [1963] 3 S.C., R. 716.

(2) A.I.R. 1960 S.C. 689.

(3) [1958) S.C.R. 828.

SUPRBMB COURT REPORTS [1968] 3 s.c.R.

tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to ? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service. . • • • .'' In the case of State of Orissa and another v, Ram Narayan Das(') the respondent who was a Sub-Inspector of Police on probation in the Orissa Police Force, was served with a notice to show cause why he should not be discharged from service "for gross neglect of duties and unsatisfactory work". He submitted an explanation whii:h was considered by the Deputy Inspector-General of Police as unsatisfactory. The said authority passed an .order discharging the respondent from service "for unsatisfactory work and conduct''.

The respondent's contention.was that the order was invalid because he had . not been given a reasonable opportunity to Show cause against tbe proposed actioJ.1 in terms of Art. 311 (2) and that he was not given an opportunity to be heard nor was any evidence taken on the charges. It was pointed out by this Court that the enquiry against the respondent was only for ascertaining whether he was fit to be confirmed, and although "an order discharging a public servant, even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualifications, may appropriately be regarded as one by way of punishment, an order discharging a probationer following upon an enquiry to ascertain whether he should be confirmed, is not of that nature." The Court distinguished Gopi KiShore Prasad's(2 ) case on the ground that there the pu.blic servant had been discharged from service consequent upon an enquiry into alleged misconduct and the. Enquiry Officer had found that the public servant was 'unsuitable for the post'. Finally it was held by this Court in Ram Narayan Das's(') case that

". . . the fact of the holding of an enquiry is not decisive of the question. What is decisive is whether the order is by way of punishment in the light of the tests laid down in Parshotam Lal Dhingra's(8 )."

In the result the appeal of the State was allowed.

Reference may also be made to the case of R. C. Lacy v. The State of Bihar and others('). In this case the appellant who was working as an Assistant Professor of Botany in Class II Bihar Educational Service was temporarily promoted to Class I of the said service against a permanent post created in April 1949 and

(1) [1961) 1 S.C.R. 606.

(2) A.l.R. 196° S.C. 689.

(3) (1958) S.C.R. 828.

(4) Civil Appeal No. 590/1962

decided on 23-10-63.

PUNJAB v. SUKH RAJ (Mitter, /,) 241

appointed Professor of Botany in the college where he was work ing. He was informed that Government would consider him for permanent appointment depending on the efficiency with which he ran the department, the extent to which he enjoyed the good will of his colleagues and the devotion to research work that he revealed during the course of the year. In April 1950 the appellant moved the Government for confirmation in Class I.

The.

Government however decided to continue his temporary service in Class I for another year with the concurrence of the Public Service Commission. Following an incident on February 9, 1951, the Commissioner of Patna Division was appointed to make an enquiry into the same. The report of the enquiry was against the appellant. On August 21, 1951, the Government passed an order reverting the appellant to his substantive post in Class II and trans ferred him from Patna College to Ranchi College. The appellant filed a suit which was dismissed by the Subordinate Judge. Losing appeal before the High Court, the appellant came to this Court by special leave. It was contended on his behalf that the order of 21st August, 1951 amounted to infliction of punishment. In dismissing the appeal, it was pointed out by this Court that

"the enquiry which was held by the Commissioner in this case was in the nature of a preliminary enquiry to en able the Government to decide whether disciplinary action should be taken against the appellant. . . . It is clear .however that the Government did not decide to hold any enquiry for the purpose of. taking disciplinary action against the appellant, for no enquiry officer was appointed, no charges were framed and no regular de partmental enquiry as envisaged by the rules and Art. 311(2) of the Constitution was ever held."

According to this Court the action of the Government was in pursuance of its right to revert an officer holding a higher post temporarily if he was not found fit for the purpose.

In Madan Gopal v. State of Punjab(') the termination of the appell.ant:s service was held to be in violation of Art. 311 (2) of the Cons1ttut10n. There the appellant, Madan Gopal, was appointed an Inspector of Consolidation "on temporary basis and terminable with one month's notice". He was served with a charge sheet to the effect that he had received illegal gratification and called uoon

t~ show cause why disciplinary action .should not be taken against hnn. The appellant submitted his explanation and the Settlement Officer who had se1;1t , out the charge sheetsubmitted his report to !he Deputy Co!11m1ss1oner that the charge relating to receipt of

11lgl grat1ficalion had. been proved. Thereupon the Deputy Comm1ss10i:er ordered tat !he services of Madan Gopal be terminated forthwith and that m heu of notice he would receive one month's

~42 SUPRBMB COURT REPOllTS

pay as required by the rules. It was held by this Court that the enquiry made by the Settlement Officer was with the object of ascertaining whether disciplinary action should be taken against the appellant for his misdemeanour and the purpose of the enquiry was to take punitive action including dismissal or removal from service if the charge was substantiated.

After discussing Ram Narayan Das's(1) case, the conclusion arrived at was that:

"Such an enquiry and order consequent upon the report made in the enquiry will not fall within the principle of Ram Narayan Das' s(') case."

In the result, the appeal was allowed.

In Jagdish Mitter v. Union of India(') this Court allowed 'the appeal of the appellant who was appointed as a temporary second division clerk in the General Post Otlice, Lahore for a period of six months in October 1946.

His appointment was continued from time to time when the impugned order was passed terminating his services. It was pointed out by this Court that even before discharging a temporary servant the authority may have to examine the question about the suitability of the said servant to be continued and :

"acting bona fide in that behalf, the authority may also give a chance to the servant to explain, if any complaints are made against him, or his competence or suitability is disputed on some grounds arising from the discharge of his work; but such an enquiry would be held only for the purpose of deciding whether the temporary servant should be continued or not.

There_ is no element of punitive pmceedings in such an enquiry; the idea in holding such an enquiry is not to punish the temporary servant but just to decide whether he deserves to be continued in service or not . . . . . . . . in some cases, the authority may choose to exercise its power to dismiss a temporary servant and that would necessitate a fonnal departmental enquiry in that behalf. If such a formal enquiry is held, and an order terminating the services of a tempcrary servant is passed as a result of the finding recorded in the said enquiry, prima facie the termination would amount to the dismissal of the temporary servant." The Court however was careful to add that considerations of the motive operating in the mind of the authority had to be eliminated in determining the character of the tennination cf service of a temnorary servant and that the form in which the order terminal ing his services was expressed would not also be decisive.

If a

. (I) [1961] I S.C.R. 6~6.

(2) AJ.R. 1964 S.C. 449 .

formal departmental enquiry had been held in which findings wero. recorded against the temporary servant and as a result of tho said findings, his services were terminated, the fact that the order by which his services were terminated, ostensibly purported to be a mere order of discharge would not disguise the fact that in substance and in law the discharge in question amounted to the dis missal of the temporary servant. The order of discharge of the appellant ran as follows :

"Shri Jagdish Mitter, a temporary Second Division Clerk of this office having been found undesirable to be retained in Government service is hereby served with a month'8 notice of discharge with effect from November

1, 1949." According to this Court, the order cast an aspersion on the tern porary servant and in substance it amounted to an order of dis missal<

The last decision to which we may refer is the one in A.· G.

Benjamin v. Union of India('). In this case, the appellant was temporarily employed as Stores Officer in the Central Tractor Organisation.

As he was not a confirmed government servant, his services could be terminated under r. 5 of the Central Civil Service (Temporary Service) Rules, 1949 with one month's notice on either side. The services of the appellant were terminated on April 23, 1954. There. had been certain complaints against him in respect whereof the Chairman of the Central Tractor Organisa tion sent a notice to him asking him to show cause why discipli nary action . should not be taken against him and an Enquiry Officer was appointed, but before the enquiry could be completed, the Chairman recommended that the services of the appellant should be terminated under r. 5 observing in his note to the

Seretary that :

"The deoartmental proceedings will take a much Ion ger time and we are not sure whether after ing through all the formalities we will be able to deal with the accus cd in the way he deserves."

Acting upon this suggestion the appellant was served with the order complained of. The order was to the effect that the appel lant was being informed that his services were no longer required in the organisation and the same were terminated with effect from the .date on which the notice was served on him. He was further informed that in lieu of the notice one month's pay and allowances due to him, he would be given the same for that" period.

This Court distinguished the facts in this case from those in Madan Gopal's(') case and held that the principle of that case could not be applicable.

(ll Civil Appeal No. 1341/1966 decided on 13-12·196b.

244 SUPREME COURT RBPOllTS

(1968) 3 S.C.R.

On a conspectus of these cases, the following propositions are.

A .cJear:

1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such ter mination without anythin¥. more would not attract the operation of Art. 311 of the ConstJtution.

2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.

3. If the order visits the public servant with any evil co!lse quences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.

4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in ser vice, does not attract the operation of Art. 311 of the Constitution.

5. If there be a full-scale departmental enquiry envisaged by Art. 311 I.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, any order of tmni nation of service made thereafter will attract the operation of the said article.

In this case the departmental enquiry did not proceed beyond the stage of submission of a charge sheet followed by the respon dent's explanation thereto. The enquiry was not proceeded with; there were no sittings of any Enquiry Officer, no evidence record ed and no conclusion arrived at on the enuiry. In these circum

stances, the principle in Madan Gopal's( ) case or Jagdish Mit ter's(') case will not be applicable. The case is in line with the decisions of this Court in State of Orissa v. Ram Nlll'ain.Das(1), R. C. Lac, v v. The State of Bihlll'(') and A. G. Benjamin v. Union of India(').

In this view of the matter, we are unable to concur with the opinion ot the Division Bench of the Punjab High Court.

This does not however conclude the matter. The respondent also complained against the non-observance of the Punjab Civil Services (Punishment and Appeal) Rules.

The learned single Judge of the Punjab High Court does not appear to have ex pressed himself definitely on the third point canvassed before him although he observed that the contention of the Advocate General about the inapplicability of r. 9 was not without force.

The learned Judges of the Division Bench did not consider this

(I) [1963J 3 S.C.R. 716.

(2) A.I.R. 1964 S.C. 449.

(3) [l961J I S.C.R.616.

(4) C.A. No. 590/1962

(5) C.A No. 1341/66 dated 13-12·66. docidtd Ob 23-10-68.

A question at all. We therefore allow the appeal and set aside the judgment of the Punjab High Court and remand the matter to that court for consideration of the respective contentions of the parties based on Punjab Civil Services (Punishment and Appeal) Rules, 1952.

The costs of this appeal will abide by the decision of the High Court.

V.P.S.

Appeal allowed and case remanded.

February 22, 1968

OF PUNJAB a AN1L

SHRI SlJKH RA1 BAii;\ DUR

February 22, 1968 [], C. SHAH, V. RAMASWAMI AND G. K. MiTTEll; 11:]

Civil Service-Completion of probation-If probationer •ntltld to tub-· stanllve oppointment-Reversiun to sub.rtanti•• par,,Whon O/J!Utllts "' punishment.

C. SHAH

V. RAMASWAMI

G. K. MiTTEll

23/26th May 1958

Punjab Government

Delhi. Administration

Art. 311

Art. 311

[1961] 1 S.C.R. 606

Vikram Chand Mahajan

R. N. Sachthey

S. P. Nayar

Sardar Bahadur

Arub B. Saharya

Vishnu B. Saharya

Youginder Khushalani

Mitter

Art. 133

Sukh Raj Bahadur

Delhi

Decem- Oer 9, 1952

Jullundur Division

Amritsar

(1968] 3 S.C.R.

21

Punjab

P.C.S.

January 28, 1957

Punjab State

Punjab State Government

Delhi Administration

23 /26th May 1958

Punjab Civil Service

Sukh Raj Bahadur

Art. 311

(1963] 3 S.C.R. 716

ayan Das

Supreme COurt

Gopi Kish_ore Prasad's(2

Madan Gopafs

Art. 311

Punjab High Court

Parshotam LalDhingra's(8

SUPRBMB COURT

Ram Narayan Das

Orissa Police Force

Art. 311

Gopi KiShore Prasad's(2

Parshotam Lal Dhingra's(8

[1961) 1 S.C.R. 606

Public Service Commission

February 9, 1951

Patna

August 21, 1951

Patna College

Ranchi College

21st August, 1951

Art. 311(2)

Art. 311

Madan Gopal

Madan Gopal

Ram Narayan Das's(1

Jagdish Mitter

November

1, 1949

Central Tractor Organisation

April 23, 1954

Central Tractor Organisa tion

Seretary

SUPREME COURT RBPOllTS

(1968) 3 S.C.R.

Art. 311

Art. 311

Art. 311

Jagdish Mit ter


AMOLAK CHAND v.

RAGHUVEER SINGH

February 22, 1968

(J. C. SHAH, V. RAMASWAMI AND G. K. MITTER, JJ.J

Repre:"nt"tion of the People Act, 1955, ss. 33, 36-0ne el.ctor whetlier niay propose two candidates in a single me, nber constituency-Candidale

unnenarily filling caste colu111n in nomlnation paper-Nomination paper whether liable to he rejecud.

The appellant and the respondent were rival candidates for election to the Madhya Pradesh Legislative Assembly in the 1967 general election.

Besides t~ two other candidates had filed nomination papers but these were rejected on the ground that they had both been proposec\ by the same elector.

The appellant won the election.

The respondent in his election petition before 1hc High Coun urged that the election had to be set aside because the nomination papers of the aforesaid two candidates had been wrongly rejected. The High Court held the election to be void.

Under s. 116-A of the Representation of People Act, 1951 the appellant came to this Court,

HELD : The appeal must be dismissed.

(i) After the amendment made by Act 27 of 1956, there is no longer any express ban or prohibition under ss. 33 and 36 of the Representation of the People Act against an "?leotor proposing more than one candidate in a single seat constituency, nor' is there such a necessary implication in any other provision of the Act. On the other hand the said amendment indi cotes that it was the intention of Parliament that there should be no ban on the. number of candidates to be proposei by an elector for a single seat constituency. [248 D-249 BJ • ·

(ii) The two candidates whose nomination papers were rejected, un~ necessarily filled the column indicating their caste. Such a requirement is there only for resei:ved seats. But there is nothing in s. 33 (2) or in the rules forbidding the candidate from mentioning his caste, and the mention of cate therefore did not invalidate the nomination papers. [249 HJ

CIVIL APPELLATE JuRISDICTION: Civil Appeal No. 1352 of 1967.

Appeal under s. 116-A of the Representation of People Act, 1951 from the judgment and order dated August 25, 1967 of the Madhya Pradesh High Court, Indore Bench in Election Petition No. 2 of 1967.

S. V. Gupte, Rameshwar Nath and Mahinder Narain, for the appellant.

D. D. Varma and Ganpat Rai for the respondent.

The Judgment of the Court was delivered by H Ramaswami, J. This appeal is brought unde; s. 116-A of the Representation of People Act, 1951, hereinafter referred to as the

A Act', from the judgment of the High Court of Madhya Pradesh dated August 25, 1967 in Election Petition No. 2 of 1967 whereby the High Court held that he election of the appellant from Barwaha Vidhan Sabha Constituency held on February 20, 1967 was void.

The appellant was a candidate at the election of the Legisla live Assembly of the State of Madhya Pradesh from Barwaha Constituency held on February 20, 1967. The respondent was a candidate for election from the same Constituency. Besides the appellant and the responden.t, there were two other candidates, namely,· Nathu son of Rupa and Sita Ram son of Sadhu Ram.

There were two nomination papers filed for Nathu son of Rupa, one nomination paper (R-3) was filed on January 19, 1967 at 2.12 p.m. and the second nomination paper (R-1) was filed on January 20, 1967 at 12.47 p.m. The nomination paper of Sita Ram son of Sadhu Ram (Rl) was also filed on January 20,

1967 at 2.32 p.m. In all the three nomination papers, the name of the candidate was proposed by one Sharawan son of Gheesa, an elector from that Constituency. On January 21, 1967, the Returning Officer rejected the nomination papers of the two candidates, Nathu son of R, upa and Sita Ram son of Sadhu Ram on the ground that the same elector could not propose two different candidates for the same Consituency. At the polling which took E place on February 20, 1967 the appellant was declared elected to the Assembly from the aforesaid Constituency on February 22, 1967 by the Returning Officer.

On March 29, 1967, the respondent filed an Election Petition under s. 80 of the Act in the High Court against 1he appellant. The respondent sought a decla ration that the election of the appellant was void under s. lOO(c)

of the Act on the ground that the nomination papers of Nathu son of Rupa and Sita Ram son of Sadhu Ram were improperly rejected.

By its judgment dated August 25, 1967, the High Court accepted the contention of the respondent and declared the elec lion of the appellant from Barwaha Constituency to be void.

On behalf of the appellant Mr. Gupte put forward the argument that under the scheme and policy of the Act an elector can propose only one candidate for a single seat Constituency and not more than one candidate and if more than one nomination is made for a single seat Constituency, all the i:iominations should be taken to be null and void. We are unable to accept this argument as correct. Section 33(2) of the Act, as it was originally enacted in 1951, contained an express ban against the same elector proposing more than one candidate for a single seat Constituency-Section 33(2) states:

L6Sup.C.l./68-3

"Any person whose name is registered in the electoral roll of the constituency and who is not subject to any disqualification mentioned in section 16 of the Representation of the People Act, 1950 may subscribe as proposer or seconder as many nomination papers as there are vacancies lo be filled but no more."

Section 36(7)(b) reads as follows:

"(7) For the purposes of this section

(b) where a person has subscribed, whether as r ·. ooser or seconder,· a larger number of non1ina- 110;1 papers than there are vacancies to be filled, those of the papers so subscribed which have been first receiv. cd, up to the number of vacancies to be filled, shall be deemed to be valid."

But by the Amending Act 27 of 1956, ss. 33 and 36 have been re :ast and do not contain any ban as that contemplated by s. 33

(2) of the unamended Act.

Section 33(1) & (2) <ifter the amendment reads thus :

"33. Presentation of nomination paper and requirements for a valid nomination.-(1) On or before the date appointed under clause (a) of section 30 each candidate shall, either in person or by his proposer between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.

Provided that no nomination paper shall be delivered to the returning officer on a day which is a public holiday.

(2) In a constituency where any seat is reserved. a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may. be, a Scheduled Tribe of the State."

Jt is true thats. 33(6) as it stands at present enables a proposer to file more than one nomination paper in respect of the same candidate, but this sub-section has no bearing on the question presented for determination in the present appeal. It is manifest

that there is no express ban or prohibition under s. 33 or s. 36 of the present Act against an elector proposing more than one candidate for a single seat Constituency.

Mr. Gupte. has not been able to point out anything in the context or language of other sections of the Act for leading to the necessary implication that an elector cannot propose more than one candidate for a single seat Constituency. On the other hand, the amendment to s. 33 of the Act by the Amending Act 27 of 1956 indicates that it was the intention of Parliament that there should be. no ban on the number of nomination papers or the number of candidates to be proposed by an elector for a single seat Constituency. On behalf of the appellant reference was made to page 13 3 of Schofield's 'Parliamentary Elections', Second Edition in which it is said that "no person is permitted to sign more than one nomi

nation paper at the same election and if he does then his signature is operative only in the case of the paper which is first deJi, ered". But this statement is based on r. 8(2) of the Parliamentary Elections Rules of the British Parliament.

There is no such statutory provision made under the Act for parliamentary elections in India and the analogy is not applicable.

We are accordingly of the opinion that Counsel for the appellant has been unable to make good his submission on this aspect of the case.

It was contended, in the next place, that Nathu and Sita Ram had mentioned in the nomination papers that they were Balais belonging to the Scheduled Caste and this was contrary to the direc.tion that the column indicating caste or tribe should be struck off except in the case of reserved seat. It was therefore argued . that the nomination papers of Nathu and Sita Ram were rightly rejected by the returning officer. In our opinion, there is no substance in this argument. The printed form 2-A is meant both for General and Rerved Constitu.encies but while it i; obligatory for candidates in the reserved constituency to make a deelaration in the proper column that he is a member of a particular caste or tribe, there is no such rule . with regard to a General Constituency.

Section 3 3 ( 2) of the Act imposes an obligation on the candidate in the reserved constituency to make a declaration in the proper column, but there is no such direction in the statute with regard to the General Constituency.

In our opinion, the mention of the caste of the candidate in the nomination form was a clear superfluity because it was not nsary for the candidate to fill in the colum~ when he was conte:dng in a General Constituency; but there is nothing either in the section or in the rules forbidding the candidate from mentioning his caste. In our opinion, there is no violation of the provisions of s. 33 of the Act or the breach of general directions

contained in Rule 4 and the nomination papers cannot be !:dd to be invalid on this account.

For these reasons we hold that the judgment of the MaJhya Pradesh High Court dated August 25, 1967 is correct and '.his appeal must be dismissed with costs.

G.C.

Appeal dismis.<cd.

AMOLAK CHAND

RAGHUVEER SINGH

February 22, 1968

C. SHAH

V. RAMASWAMI

G. K. MITTER, JJ

People Act, 1955

ss. 33, 36

s. 116

Representation of People Act, 1951

ss. 33 and 36

Representation of the People Act

s. 33

s. 116

Representation of People Act, 1951

S. V. Gupte

Rameshwar Nath

Mahinder Narain

D. D. Varma

Ganpat Rai

H Ramaswami

s. 116

Representation of People Act, 1951

High Court of Madhya Pradesh

Nathu

Rupa

Sita Ram

Sadhu Ram

Nathu

January 20,

1967

Sharawan

Gheesa

January 21, 1967

February 20, 1967

February 22, 1967

March 29, 1967

s. 80

August 25, 1967

Barwaha

Gupte

Section 33(2)

Section 33(2)

section 16

Representation of the People Act, 1950

Section 36(7)(b)

by the Amending Act

ss. 33 and 36

s. 33

Section 33(1)

section 30

section 31

s. 33

s. 36

s. 33

Parliament

Schofield

British Parliament

India

Section 3

s. 33

MaJhya Pradesh High Court