Suryamani Dei and Laxman Mahakude Vs. State of Orissa - Court Judgment

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- [j.r. mudholkar,; k. subba rao,; k.n. wanchoo,; n. rajgopala ayyangar, jj.] the respondents who were officiating tahsildars in the former state of pepsu were confirmed as tahsildars by a notification issued by the financial commissioner. no posts were available at that time in which the respondents could be confirmed. the next day the rajpramukh sanctioned the creation of supernumerary posts of tahsildars to provide liens for the respondents who had been confirmed under the notification. thereafter, states re-organisation took place and pepsu merged with the state of punjab. the punjab government subsequently, by a notification "de-confirmed" the respondents. the respondents challenged this notification by way of writ petitions before the punjab high court under art. 226 of the constitution. the grounds on which the challenge was made were (1) the action of the government amounted to a reduction in rank and it constituted a violation of art. 311(2) of the constitution and (2) it constituted a violation of the protection given to the respondents under s. 116 of the states re- organisation act, 1956. the single bench allowed the writ petition and after appealing to a division bench without success the state of punjab appealed to this court on special leave. it was contended on behalf of the state that (1) the order made by the pepsu government confirming the respondents was in total disregard of the punjab tahsildari rules and, therefore, the successor government was well within its rights to rectify the mistake committed by the predecessor government; (2) article 311 of the constitution has no application in a case where the government reduces the rank of a government servant without any reference to his conduct but only for the reason that the previous order was contrary to the rules; and (3) assuming that the earlier order was good, it is always open to the government to abolish posts and such an action is not justiciable' under art. 226 of the constitution, as it does not violate any statutory provision. held:(per p. b. gajendragadkar, k. n. wanchoo, n. raja- gopala ayyangar and j. r. mudholkar, jj. subba rao j. dis- senting), (i) had there been any substantive vacancies, actual or anticipated, there would have been no occasion to create supernumerary posts. therefore, it must follow that the order of financial commissioner had no legal foundation, there being no vacancies in which the confirmations could take place. his order therefore, confirming the respondents as permanent tahsildars must be held to be wholly void. (ii)the order of the rajpramukh does not appoint the res- pondents as permanent tahsildars but only mentions the fact of the confirmation of the respondents and others. therefore, the creation of supernumerary posts appears to be an afterthought and is of no avail as a means of validating the original order of confirmation. (iii)when an order is void on the ground that the authority which made it had no power to make it, it cannot give rise to any legal rights. where a government servant has no right to a post or to a particular status, though an authority under the government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status. therefore, the government notification "de-con- firming" the respondents should be interpreted to mean that the government did not accept the validity of the confirmation of the respondents. (iv)even though upon their allocation to the state of pun- jab they were shown as confirmed tahsildars, they could not in law be regarded as holding that status. legally their status was only that of officiating tahsildars and hence there was no reduction of rank by reason merely of correcting an earlier error. therefore, art. 311(2) is not attracted. (v)sub-s.(2) of s. 116 of the states reorganisation act, 1956 is wide 'enough to empower the successor government, which would be the competent authority under the act, to make the impugned notification. per subba rao, j.-(i) it cannot be denied that a state can create supernumerary posts if the exigencies of administration require. it is in substance creation of posts to meet a given situation. the order of the rajpramukh in express terms refers to the earlier order of the commissioner. it says that the supernumerary posts were created to provide liens for the tahsildars confirmed by the commissioner's order. this order, therefore, fills up the lacuna found in the earlier order and thus validates it. (ii)assuming that the order passed by the rajpramukh could not be given retrospective effect, the result could not be different. the commissioner was admittedly the appointing authority. he confirmed the respondents, but his order could not take effect for want of permanent vacancies. the government by creating supernumerary posts made the order effective. the order of confirmation was good, and the pepsu government could not have reduced the rank of the said officers duly confirmed except in the manner prescribed. the punjab state also could not reduce their rank except in the manner prescribed by the rules and the provisions of the constitution. (iii)the question that falls to be considered under art. 311(2) iswhether the government servant was dismissed or removed or reduced in rank as punishment. it would be punishment if either of two tests was satisfied, namely, if he had a right to the post or if he had been visited with evil consequences. if either of the said two tests was satisfied, he was punished; and if so, he should be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. purshotam lal dhingra v. union of india, [1958] s.c.r. 828, referred to. devasahayam v. state of madras, i.l.r. 1958 mad. 158, held inapplicable. (iv)the respondents had a right to occupy a substantive rank in the posts of tahsildars and their reduction as officiating tahsildars was certainly reduction in rank as punishment. - in these circumstances, therefore, we are not able to find any reliable evidence to connect the appellant directly with the crime of actual murder of the deceased.s. murtaza fazal ali, j.1. in this appeal under section 2(a) of the supreme court (enlargement of cri. appellate juri) act, the appellant surmani devi has been convicted under section 302/34 and sentenced to imprisonment for life and has also been convicted under section 201/34, but no separate sentence was passed thereunder. the appellant laxman mahakude has been convicted under section 201 i.p.c. and is sentenced to seven years r.i. the sessions judge acquitted the appellants and other accused who were charge-sheeted before the court, and on appeal by the state, the high court reversed the order of acquittal passed by the sessions judge and convicted the appellants as indicated above.2. a detailed narrative of the prosecution case is to be found in the judgment of high court and it is not necessary for us to repeat the same all over again. the occurrence appears to have taken place sometimes on the morning of 4/11/1965. the case against the accused rests purely on circumstantial evidence which has been accepted by the high court as a result of which the appellants were convicted.3. mr. quammaruddin, who is appearing as amicus curiae for the appellants and 'who has been of great assistance to us, has submitted that even assuming that all the circumstances are held to be proved, there is nothing to show that the appellant suryamani devi has taken any active part in the assault on the deceased nor is there anything to show that the had a common intention to murder the deceased along with the accused. we have gone through the judgment of the high court and have also perused the records and we are of the opinion that the contention of the learned counsel for the appellant is sound and must prevail. the high court catalogued the circumstance in the judgment thus:thus, the circumstances proved against her are: (1) she had a motive; (2) there was scope and opportunity to murder; (3) she had guilty knowledge of the place and time of murder which she suppressed; (4) she had washed the floor with cow-dung to obliterate bloodmarks; (5) she knew the route by which the dead body was carried out of the house for disposal; (6) her own bala, m.o. ii had been used in murdering the deceased, and that was stained with human blood; (7) she had kept it concealed in her kitchen: (8) her conduct of silence and in refraining from informing the police about the missing of the deceased; and (9) her giving deliberately false explanation about the incriminating circumstances, and at times giving no explanation.even taking these circumstances ex facie, there is nothing to indicate that the appellants shared the common intention to murder the deceased or took any active part in the murder of yudhishter behera. the high court relied on the confession of the appellant which on being perushed by us not appear to be a confession at all because the appellant has not inculpated herself in any way. all that can be said is that she had knowledge of the murder but has categorically stated that she informed the chawkidar about the occurrence having taken place. the prosecution has examined p.w. 1 to prove that he met the appellant suryamani dei and he was told by her that the accused had left the house the previous night. inspite of the positive statement made by the appellant in the confession that the chawkidar was the first person to be informed, the prosecution has not made any attempt to examine the chowkidar in order to falsify the statement of suryamani dei. the investigating officer has also found that the place where the deceased was killed contained lot of bloodstain, namely on the floor, wall and the stool. that by itself does not implicate the appellant surmani dei. in these circumstances, therefore, we are not able to find any reliable evidence to connect the appellant directly with the crime of actual murder of the deceased.4. there can however, be doubt that there is sufficient evidence to show that the appellant knew that the dead body was carried for being disposed of. therefore, she can be convicted under section 201/34. for these reasons, we allow the appeal of suryamani dei to this extent only that her conviction under section 302/34 is set aside and her conviction under section 201/34 is maintained and she is sentenced to seven years r.i. thereunder. as regards the other appellant laxman mahakude, there is overwhelming evidence to show that he took active part but in disposing of the dead body and hence there is no merit in his appeal. the result is that the appeal of the appellant suryamani dei is allowed partly as indicated and that of laxman mahakude is dismissed.