SAT PAL SHARMA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is an appeal under Clause 10 of the Letter Patent against the judgment and order of a learned Single Judge of this Court, dated October 10, 1966, whereby Civil Writ Petition No. 1505 of 1966. filed by the appellants for setting declared as invalid and ineffective Rules 6 (f) and 7 (1) (e) (i) of the Punjab Financial Commissioner's Office (State Service Class III) Rules. 1957 (hereinafter called the impugned Rules), on the ground that those were ultra vires the proviso to Sub-section (7) of Section 115 of the States Reorganisation Act (37 of 1956) (hereinafter referred to as the 1956 Act) was dismissed.

(2.) SHORN of all unnecessary details, the relevant facts leading to the filing of this appeal are that both the appellants were in Pepsu service and were absorbed therefrom in the service of the united Punjab as Clerks consequent on the integration of the two States by the 1956 Act A conference of the Secretaries or Chief Secretaries of certain States was held in December 1956. No part of the proceedings of the conference hat been placed before us, but it is not disputed that certain conclusions were reached in the said conference. Before any letter or order of the Government of India approving of those conclusions could be issued the Governor of Punjab issued notification No. 9775-GII-57/24991. dated February 9, 1957 (Annexure 'j' to the replication) in exercise of his powers under Article 309 of the Constitution to the effect "that the Service Rules, Punishment and Appeal Rules and the Government Servants Conduct Rules applicable to various services posts and personnel in the erstwhile States of Punjab and Pepsu will continue to apply as from 1st November, 1956 to the corresponding services, posts and personnel of the new State of Punjab till further orders. " On February 28, 1957 the Punjab Government (Revenue Department) Notification No. 1476-BC-57/625 of that date containing the impugned rules was published. Rules Nos. 1. 6 (f) and 7 (1) (e) are quoted below: "1. (i) Short title.--These rules may be called the Punjab Financial Commissioner's Office (State Service Class III) Rules 1957 (ii) They shall come into force at once and shall supersede the rules published with Punjab Government Notification No. 1082 BC. , dated the 27th August 1943. 6 (f) Qualifications.--No person shall be appointed to any post unless he possesses the following qualifications: Assistant.-- He has an adequate Knowledge of relevant rules and regulations and has qualified in the departmental test prescribed for promotion to this post. 7 (1) (e) Method of filling posts.-- Posts in the service shall be filled: Assistants.-- (i) By promotion of Clerks or selection of Stenographers including Personal Assistants working in the Financial Commissioner's Office, provided that a Clerk who has not qualified in the departmental test prescribed for the purpose shall not be eligible for the promotion; or (ii) By selection from among officials employed in departments of Government other than the Financial Commissioner's office. " The impugned rules, were framed by the Governor of Punjab in exercise of the powers conferred on him by the proviso to Article 309 of the Constitution. Prior to the framing of the impugned rules, the appellants were governed by the relevant Pepsu rules published in the Government of Patiala and East Punjab States Union Gazette on December 13. 1952 (Annexure 'b' to the writ petition) which were continued in force for the appellants and other erstwhile Pepsu employees by the rules framed by the Governor of Punjab under Article 309 of the Constitution on February 9, 1957 (Annexure 'j' to the application already referred to ). On March 27, 1957, the Government of India in the Ministry of Home Affairs sent a circular letter to the Chief Secretaries to the various State Governments including the Chief Secretary to Government of Punjab (Annexure 'i' to the return of the State), wherein it was stated inter alia as follows: "i am directed to refer to the proviso to Sub-section (7) of Section 115 of the States Reorganisation Act which lays down that the conditions of service applicable immediately before the appointed day to any person referred to in Sub-section (1) on Sub-section (2) of the section shall not be varied to his disadvantage except with the previous approval of the Central Government 2. It will be recalled that the question of protection to be afforded in the matter of various service conditions to personnel affected by reorganisation. was discussed with State representatives at conference held in summer last and again in December, 1956. After a careful consideration of the views expressed at these conferences the Government of India have now decided that the conditions of service applicable to personnel affected by reorganisation immediately before the date of reorganisation, should be protected as indicated below: X X X X X

(3.) THE decisions contained in paragraph 2 above follow the agreed conclusions reached at the December Conference of Chief Secretaries and other State representatives. It will be recalled that at the December Conference of State representatives, in addition to the items dealt with in paragraph 2, the question whether any protection should be given in respect of rules and conditions applicable to Government servants affected by reorganisation immediately before the date of reorganisation in the matter of travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion was also considered. The Government of India agree with the view expressed on behalf of the State representatives that it would not be appropriate to provide for any protection in the matter of these conditions. As regards rules relating to medical attendance, they agree that no protection' as such need be provided. They, however, consider it unlikely that in an age of growing emphasis on the provision of such welfare items as medical attendance by the State, any State Government would wish to cut down medical attendance facilities which might have been available to a set of employees in their parent State immediately before reorganisation. " in the penultimate paragraph of the communication, it was added: "6. In respect of such conditions of service as have been specifically dealt with in the preceding paragraphs, it will be open to the State Governments to take action in accordance with the decisions conveyed therein, and so long as State Governments act in conformity with those decisions they may assume the Central Government's approval in terms of the proviso to Sub-section (7) of Section 115 in the States Reorganisation Act. In all other cases involving conditions of service not specifically covered in the preceding paragraphs, it will be necessary for the State Governments concerned to obtain the prior approval of the Central Government in terms of the above provision before any action is taken to vary the previous conditions of service of an employee to his disadvantage. In the event of any doubt arising as to the intention of the Central Government about any of the points dealt with in this letter. State Governments would no doubt refer the matter to the Government of India for clarification. " 3. The main complaint in the writ petition was that Clerks who were much junior to the petitioners had been promoted to the posts of Assistants merely because they had passed the qualifying test and that the petitioners were not at all being considered for promotion on the solitary ground that they had failed to qualify in the said test prescribed by the impugned rules. This fact has not been denied at any stage. The vires of the impugned rules were challenged on the short ground that they varied the conditions of service applicable to the petitioners immediately before November 1, 1956, to their detriment and disadvantage, and were violative of the mandatory requirements of the proviso to Sub-section (7) of Section 115 of the 1956, Act, inasmuch as the prior approval of the Central Government required by the abovesaid provision had not been obtained before framing the said rules, and that the subsequent issue of the blanket approval in the Central Government's letter, dated March 27, 1957, could not and did not satisfy the requirements of that provision. Sub-section (7) of Section 115 and the proviso attached thereto are reproduced below for ready reference: "nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State: Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in Sub-section (1) or Sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government. "