CANTONMENT BOARD, AMBALA Vs. GENERAL OFFICER COMMANDING

JUDGEMENT

(1.) This order will dispose of two Civil Writ Petitions Nos. 3320 and 3321 of 1978, wherein common questions of law are involved.

(2.) In Civil Writ Petition No. 3320 of 1978, Ajit Kumar Ahluwalia respondent was appointed Office Superintendent Grade I (Rs. 400-650) on April 30, 1973, on six months' probation which he completed and was confirmed vide resolution of the Cantonment Board, Ambala Cantt. (hereafter Board) passed on January 18, 1977. On February 4, 1977, Ahluwalia applied to the Board that as some area of the Board was to be excised to be included in another newly constituted local authority resulting in the abolition of the post of Office Superintendent Grade I (Rs. 400-650), he may be appointed Superintendent in the grade of Rs. 250-450. The Board vide their resolution dated August 20, 1977, decided to post Ahluwalia as Superintendent in the Tax and Revenue Branch (Rs. 250-450) and he was informed about it vide letter dated August 30, 1977, wherein it was also indicated that his emoluments as on February 5, 1977, would be protected. The post of Office Superintendent Grade I (Rs. 400-650), was abolished by the Western Command Headquarter with effect from Feb. 6, 1977, While handing over charge of Office Superintendent Grade II where Ahluwalia was working with effect from February 6, 1977. after the abolition of the post of Office Superintendent Grade I and simultaneously joining the post of Office Superintendent in the Tax and Revenue Branch he appended remarks in the handing over note "Official handing over with continuity of service and legal claim and right of higher pay, higher grade etc". On September 2, 1977, Ahluwalia challenged the abolition of the post of Office Supertintendent Grade I with retrospective effect, that is with effect from February 6, 1977, and claimed that he was holding the old post up to August 31, 1977, and as such entitled to the protection of emoluments that he was getting on that date. The representation of Ahluwalia dated September 2, 1977, was considered by the Board in their meeting on September 30, 1977, and it was resolved to discharge him from service under Rule 8 (1) (e) of the Cantonment Fund Servants Rules. 1937, (hereafter the Rules) on payment of three months' salary in lieu of three months' notice on the ground that he did not accept the alternative appointment unconditionally. Ahluwalia was consequently discharged from service on September 30, 1977. Feeling aggrieved by the order of discharge, Ahluwalia filed Civil Writ Petition No. 3089 of 1977, wherein an objection was raised by the Board that remedy was available to Ahluwalia under Section 52 (1) of the Cantonments Act, 1924 , (hereafter the Act) to approach the Officer Commanding -in-Chief, the Command, (hereafter the Commanding Officer), and that he should have availed it before rushing to the High Court. The High Court directed Ahluwalia to approach that authority. Ahluwalia made representation to the Commanding Officer and the Board submitted its comments. The Board received a communication on March 29, 1978, from the Commanding Officer suspending the action of the Board for a period of three months. The Board reacted unfavourably thereto and represented to the Commanding Officer that as the impugned order of discharge of Ahluwalia had already been executed, there remained nothing the execution of which could be suspended. On May 3, 1978, the Commanding Officer still passed the final order and directed that Ahluwalia be reinstated with effect from the date of his discharge. It is in this background that the Board has filed this writ alleging that the orders passed by the Commanding Officer are illegal and ultra vires. It has been prayed that the interim order of the Commanding Officer dated March 29, 1978, (p.1) and the final order dated May 3, 1978 (p. 4), as also the order dated July 19, 1978, (p. 6) declining to review the earlier order (p. 4) be quashed.

(3.) In Civil Writ Petition No. 3321 of 1978, B. C. Sharma respondent No. 2, joined service of Cantonment Board, Ambala, on March 31, 1945. He was discharged from service by the Board under R. 8 (1) (c) of the Rules on July 29, 1977, when he was working as Assistant in the Revenue and Tax Branch. He filed civil writ petition in the High Court which was dismissed in limine on December 23, 1977, and so was his petition for leave to appeal in the Supreme Court on February 24, 1978. B. C. Sharma then represented to the Commanding Officer, who vide his order dated May 3, 1978, (p. 3) suspended the resolution of his discharge for a period of three months and thereafter on receipt of comments from the Board passed the final order dated 19-7-78, (p. 6) accepting the representation and directing the Board to reinstate him with effect from the date of his discharge. The Board has filed this writ alleging that the order of the Commanding Officer dated May 3, 1978 (p. 3) suspending the resolution of the Board as also the final order D/- 19-7-1978 (p. 6) directing that B. C. Sharma be reinstated with effect from the date of his discharge are illegal and ultra vires his power. It has been prayed that these two orders be quashed.