| SooperKanoon Citation | sooperkanoon.com/811477 |
| Subject | Labour and Industrial |
| Court | Chennai High Court |
| Decided On | Aug-29-1967 |
| Judge | T. Venkatadri, J. |
| Reported in | (1969)ILLJ600Mad |
| Appellant | Krishnaswami (K.R.) |
| Respondent | Director of Technical Education and ors. |
| Cases Referred | In Hartwell Prescott Singh v. Uttar Pradesh Government |
T. Venkatadri, J.
1. In this petition for the issue of a writ of mandamus, we have to consider whether the petitioner was reduced in rank as per the rules and regulations and conditions of service, and whether the impugned order was passed on an erroneous exercise of jurisdiction, misinterpretation and misconstruction of the rules.
2. The writ petitioner entered Government service in the year 1945 and was in charge of teaching and training students in the Government Cinematography and Sound Engineering section. Before ho joined Government service, he had served as a cameraman for four years in Motion Picture Producers (Combine), Ltd. While he was working as a cinema assistant in the Central Polytechnic, he was appointed as Maintenance Engineer, Films Division, Bombay, with effect from 29 November 1954, and, in his place, one B. sivathanu Pillai, much junior to the petitioner, was appointed. While he was employed as Maintenance Engineer, Films Division, Bombay, the Government of Madras, in their G.O. Ms. No. 734, Education, dated 16 April 1058, appointed the petitioner, who was on other duty under the Government of India, to act regularly as head of sound engineering section, Central Polytechnic, Madras, with effect from 12 January 1956. This order stated that it was without prejudice to his appointment as Maintenance Engineer, Films Division, Bombay. As the petitioner was in Bombay, the and Sivathanu Pillai was appointed, by the same Government Order, to act regularly as head of sound engineering section, Central Polytechnic, Madras. Subsequently the petitioner grot himself relieved from the post of Maintenance Engineer, Films Division, and reported to duty as head of section, cinematography and sound engineering. Central Polytechnic. But the Director of Technical Education posted the petitioner as Special Officer for Outdoor Films, Central Polytechnic, toy his order dated 22 July 1959. The Director of Technical Education thereby allowed the said Sivathanu pillai to continue as the head of the cinematography and sound engineering section, for which post the petitioner was originally appointed in G.O. Mb. No. 734, dated 16 April 1958. The petitioner attacks the validity of this order dated 22 July 1959 as also the subsequent order dated 14 March 1962 and attributes motives and mala fides to the Director of Technical Education.
3. It is an admitted case that the Government themselves passed various orders from time to time first announcing the appointment of the petitioner as head of cinematography and sound engineering section, then regularizing the same and then notifying the same in the gazette. It is, therefore, necessary for me to state in detail the Government orders passed from time to time starting from 1958 and ending with 14 March 1962, the date on which the petitioner was appointed to act as Special Officer for Outdoor Films.
4. By G.O. Ms. No. 734, Education, dated 16 April 1958, the petitioner was appointed to act regularly as head of sound engineering section, Central Polytechnic, Madras, with effect from 12 January 1956 without prejudice to his then appointment. It must be noted that the petitioner was then working as Maintenance Engineer, Films Division, Bombay. The appointment of the petitioner as head of sound engineering section and cinematography was also gazetted on 30 January 1958. Further, the Government also informed the Director of Technical Education by their memorandum dated 10 June 1959, that the posts of head of section in cinematography and sound engineering and Special Officer for Outdoor Films were distinct from one another and that as the petitioner was regularly selected by the Public Service Commission and then appointed by Government for the post of head of sound engineering section, he should be posted on reversion from the Government of India as head of the sound engineering section, Central Polytechnic, Madras. Pursuant to this memorandum, the Deputy Secretary to the Government of Madras wrote to the Controller of Films Division, to relieve the petitioner, so as to enable him to join duty as head of section, cinematography and sound engineering, Contral Polytechnic, Madras. But curiously when the petitioner, after relief from Bombay, came to report for duty in Madras, he was informed by the Director of Technical Education, in his notification, dated 22 July 1959, that he had been postedas Special Officer for Outdoor Films, Central Polytechnic, Madras. It is particular to note that in spite of this notification by the Director of Technical Education, the Government notified by publishing in the gazette that the petitioner was appointed to act regularly as head of sound engineering section, Central Polytechnic, Madras, with effect from 12 January 1956. In the year 1960, when the Government of Madras established a separate institute known as the Institute of Films Technology, these staff were transferred to the control of the Director of Technical Education with effect from 14 September 1960 The petitioner was transferred from the cinematography and sound engineering section in the Central Polytechnic and was posted as Special Officer, Outdoor Films, andSivathanu Pillai was posted as head of cinematography and sound engineering section. In G.O. Ms. No. 2907, dated 12 December 1961, the Government sanctioned the permanent retention of the temporary posts in the Institute of Film Technology, and the Director of Technical Education was directed to take stops to confirm the incumbents in the respective posts, taking into consideration their seniority, etc. It should also be noted that the Government issued general instructions in the month of January 1962, in G.O. No. 57, Public (Services) Department, dated 8 January 1982, that orders declaring probation should be issued immediately after the prescribed period of probation expired. The order further stated that except in cases where serious charges were pending, all officers appointed by direct recruitment or by promotion or by transfer before 1 January 1957 and whose probation had not been declared should be declared to have completed their probation on the strength of that order. In this case, even after six years the petitioner's probation had not been declared. But we find the Director of Technical Education starting disciplinary proceedings against the petitioner in the month of April for various irregularities committed by him in connexion with the supply and erection of an automatic process machine in August: 1980. The charges have been pending enquiry till the filing of the writ petition in this Court. While so, the Government passed G.O. Ms. No. 548, dated 14 March 1962, stating- that though the petitioner was recommended by the Public Service Commission originally for the post of the head of section of cinematography and sound engineering, the petitioner was away and was not in the teaching line from 1954 to 1959, that he did not possess adequate academic qualification and was therefore not suitable for the post of head of section of cinematography and sound engineering. He was therefore recommended for the post of Special Officer for Outdoor Films by the Director of Technical Education. The Madras Public Service Commission had concurred in the view of the Director of Technical Education. The Commission suggested that Sivathanu Pillai could be continued in the post of head of section in sound engineering and the petitioner in the post of Special Officer for Outdoor Films. Accordingly, the Government issued the above notification, in supersession of the notification already issued on 16 April 1958, appointing the petitioner to act regularly as Special Officer with effect from 12 January 1956, the date on which he was originally appointed as head of section, cinematography and sound engineering.
5. The petitioner states in his affidavit that the Director of Technical Education is prompted by improper motives and that his action was done mainly with a view to give a favoured treatment to Si vathanu Pillai, who has since become the Principal of the Institute of Technology.
6. It is common case that when the petitioner was appointed as an assistant in the Government Cinematography and Sound Engineering section, he was then found fit for the post. During the period 1945 to 1954, he was training students. Even prior to that, he had sufficient experience and had worked as a cameraman. When he was appointed as Maintenance Engineer, Films Division, Bombay, in his place, the said Sivathanu Pillai was appointed as cinema assistant. Admittedly Sivathanu Pillai was not only his junior but also his student while the petitioner was in the teaching staff. While he was at Bombay, the post of head of sound engineering section had to be filled up. At that time, the petitioner's seniority and appointment as head of sound engineering section was considered and determined in consultation with the Public Service Commission. They were aware of the qualification and experience of the petitioner when they selected him for the post of head of cinematography and sound engineering section. It was only after the approval by the Commission the Government issued the order appointing him as head of cinematography and sound engineering section, and it was also gazetted. Now the Public Service Commission says that the petitioner is not qualified for the post of head of cinematography and sound engineering section. In saying so, the Commission have concurred in the view of the Director of Technical Education. The Public Service Commission have a distinct and distinguished status under our Constitution. The Public Service Commission cannot and should not identify themselves with the governmental authorities. When once the Commission express their opinion that the petitioner is entitled to the post as head of the section of sound engineering, they cannot afterwards concur with the view of the Director of Technical Education and say that the petitioner is not a fit person for the disputed post. If the Commission is to change their opinion from time to time to suit the occasion, they would be placing themselves in a ridiculous situation and would be liable to public criticism. Once they give a considered opinion, they must stick to it and their decision must be final at least go far as they are concerned. Their approval is the last word in the selection of a particular candidate for a distinct post. At the time of the selection, the Commission felt that the petitioner possessed the necessary qualification and also experience in technical line. Subsequently, the Government amended the rules regarding qualification for the said post of head of section of cinematography and sound engineering. But this certainly would not affect the petitioner, as he entered the departmental service before the amended rules came into force, and further he had the necessary qualification when he entered service.
7. Learned counsel for the petitioner contended that., since his client has been regularly appointed as head of cinematography and sound engineering section, on account of the notification dated 22 July 1959 and the order dated 14 March 1962 he has lost valuable rights and benefits attached to that post by his being posted as Special Officer. According to him, the petitioner would have got, the post of Principal of the Institute of Film Technology, whereas now Sivathenu Pillai, a junior to the petitioner, has been promoted to act as the Principal from the post of head of section of cinematography and sound engineering. In the normal course, if the petitioner had been allowed to join the post of head of cinematography and sound engineering section, he would have become the Principal of the institute of Film Technology. Learned counsel, therefore, contended that that amounted to reduction in rank under Article 311(2) of the Constitution.
8. Their lordships of the Supreme Court in Parshotam Lal Dhingra v. Union of India 1953 I L.L.J. 544 have observed at p. 562:.A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has on right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servent has no title to the post or the rank and the Goverment has by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances 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. Thus, if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chasses of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employmentas and by way of penalty ...the Court has to apply the two tests mentioned above,namely.
(1) whether the servant had a right to the post or rank or
(2) whether he ha3 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 or the reversion to his substantive rank must be regarded as a reduction in rank....
The Supreme Court has referred to this principle in Wadhwa (P. C.) v. Union of India and Anr. : (1964)ILLJ395SC . The said principle has been followed by the High Court of Andhra Pradesh in a case on similar facts, Stale of Andhra Pradesh v. Chinnappa Reddi1963 I L.L.J. 765. The respondent in that case entered service in the Salt Department in 1940 as a clerk. His services were transferred to the Factories Department where he completed his probation. He was thereafter appointed as a clerk in the Revenue Department where he was promoted as an upper divisionclerk. When the State of Andhra Pradesh was ushered into existence on 1 October 1953, the respondent sought a transfer to the Andhra Secretariat Service and he was entertained there as an upper division clock in the Revenue Secretariat, and his services were subsequently regularized. It must be noted that the respondent did not possess the necessary educational qualification for the Secretariat Service. He was, therefore, for a time reverted to the revenue establishment. As a result of representation made by the respondent, the Government; relaxed the rule of the minimum general educational Qualification in favour of the respondent and appointed him by transfer to the Secretariat Service. This was in 1955. But in 1960, he was reverted to therevenue establishment. He filed a writ petition the main ground being that the order of reversion deprived him of the benefits of the service in the Revenue Secretariat with its higher emoluments which would amount to a reduction to a lower rank and that was not afforded an opportunity as required by Article 311(2). Summing up the case, the learned Judges observed that the impugned order, though had the garb of an order of transfer from the Secretariat Service to the Revenue Department, visited the respondent with renal consequences and therefore, amounted to a reduction in rank. Similarly in this case, though, the Director of Technical Education has stated in the counter-affidavit that both the posts carry the name status, scale of pay and responsibilities, while there is chance for promotion from the post of head of section of sound engineering to the post of Principal of the Institute of Film Technology, there is no such chance of promotion from the post of Special Officer. Even assuming that the two posts carry the same status and scale of pay, the petitioner was designated and was also intended to be posted as the head of cinematography and sound engineering section only, as he had the sufficient experience and also seniority. Certainly, he cannot be equated with a junior who was also his student, merely because the latter had obtained a degree in cinematography. The petitioner has worked for nearly two decades in the department. His knowledge, experience and age should certainly be taken into consideration while fixing the seniority. I do realize that by issuing a writ of mandamus, the present person in the post, namely, Sivathanu Pillai, would be reverted. But justice has grot to ho done in this case withoutconsideration of persons and personalities.
9. Learned counsel for the respondents contended that this Court had no jurisdiction to adjudicate the disputed question, as it involved the question of promotion and fixation of seniority coming under the relevant service rules which are of an administrative character and therefore not enforceable in a Court of law.
10. Under Article 309 of the Constitution of India, provision is made for enactment of laws for regulating the recruitment and conditions of service of persons appointed to public services. Under that article, provision is also made for the making of rules for the same purpose. Any rule or statutory provision, whether made under Article 309 or not, which conflicts with the rule of pleasure declared in Article 310(1) of the Constitution will not be legally enforceable and will have the effect of an administrative rule. But the question still remains as to what rules or statutory provisions must be regarded as repugnant to the rule of pleasure ' contained in Article 310(1). Before the Constitution of India was framed, in Venkata Rao v. Secretary of State , their lordships of the Privy Council held that, notwithstanding the breach of the service rule, the matter was not justifiable in a Court of law. The Privy Council held that the words ' subject to the rules' in Section 96B of the Government of India Act, 1919, only amounted to a statutory and solemn assurance and that the remedy for breach of the rules was by approach to the higher authorities in the Government and not legal action in a Court of law. At the same time, their lordships urged the necessity on the part of the Government to see that supreme care was taken that the rules were strictly carried out in their letter and spirit. This view was also taken by the Privy Council in Rangachari v. Secretary of State ; where, however, the rule in question related to pension rights of Government servants. The above two cases may be taken to represent the law before the Constitution. After our Constitution, a considerable divergence of views is noticed and this can besummarizrd. Krishnamoorthi v. State of Madras : AIR1951Mad882 laid down that the service rules prescribing the procedure to be followed while taking disciplinary action against Government servants including dismissal, removal and reduction in rank were only of an administrative character and that non-compliance with such rules by itself would not be a matter justiciable in a Court of law. Chandra Bhan v. Union of India : AIR1956Bom601 held that a suit for declaration that dismissal was illegal was not maintainable. In Sambandhan (A) v. Southern Railway and Ors. (Regional Traffic Superintendent (personnel), Tiruchirappalli) 1959--IIL.L.J. 613, it was held by this Court that the breach of service rules and regulations as to assignment of seniority to Government servants was not a justiciable matter. In Des Raj v. state of Punjab , it was held that the Government's failure to observe the fundamental rules in the matter of promotion would not give rise to a cause of action. In G. Valayya Panthulu v. Government of Andhra A.I.R. 1958 A.P. 240, it was held that the breach of the rules and regulations relating to the termination of service of Government servants would not render the action taken by the Government invalid, where no grave prejudice had been caused to the Government servant in consequence of such breach. In Lachman Prasad RamPrasad v. Superintendent, Government Harness and Saddlery Factory, Kanpur : AIR1958All345 , the Allahabad High Court held that the scalea of pay of Government servants could not be altered to their detriment when such alterations were contrary to the service rules. In N. Bakshi v. Accountant-General, Bihar : AIR1957Pat515 it was held by the Patna High Court that an I.C.S. Officer was entitled to a mandamus against the Accountant-General ordering him to pay passage money for his wife and children according to the set vice rules applicable to him. The Supreme Court in Parshotam Lal Dhingra v. Union of India : (1958)ILLJ544SC (vide supra), held that breach of the rules and regulations regarding the procedure to be followed while taking disciplinary action against the Government servant including dismissal, removal and reduction in rank would be justiciable in a Court of law. The Supreme Court impliedly held in Nohiria Ram v. Union of India : [1958]1SCR923 , that matters like seniority, of a Government servant were open to judicial determination in so far as they depended upon the service rules. In Hartwell Prescott Singh v. Uttar Pradesh Government : [1958]1SCR509 , the Supreme Court entered into the service rules in order to determine what the status of the Government servant was according to the rules and whether the particular order in question in the case might be regarded as one of redaction in rank so as to attract the application of Article 311 of the Constitution. Therefore, the original view that rules relating to service conditions were merely administrative directions not enforceable in Court of law no longer holds the field. It is clear from the above summary of the decisions, that rules and provisions which fetter the power of the Government toterminate the service of an official will be regarded as conflicting with the rule of ' pleasure' and hence not enforceable against the Government in a Court of law. But he will be entitled to the protection under Article 311 and such protection cannot be whittled down or negatived by the service rules. Of course executive instructions will have the status of rules and will not be capable of judicial enforcement. But rules cannot be changed from time to time to suit the requirement of any person or authority. And such a rule can never have retrospective operation which is repugnant to the conception of rule of law. If the administrative acts appear to be arbitrary and capricious, the Courts have a right to interfere in writ jurisdiction to help the persons who are meekly suffering. It is not as if the law Courts are powerless to give sufficient redress to the Government servants in respect of their legitimate grievances grounded on favouritism and arbitrary discrimination. When once the shortcomings of the officers is brought to the notice of Court, the Court should without hesitation rectify them. The Court should not and cannot dictate how the discretion should be exercised but can compel the legitimate exercise of the discretion. If the authority has taken a wrong view in law of the nature of the discretion, it is an error of law. The rules should not be made or altered or varied to the detriment of the petitioner who has been appointed according to the existing rules.
11. Under these circumstances, I fee1 that the original order passed in G.O. Ms. No. 754 dated 16 April 1958, appointing the petitioner as the head of cinematography and sound engineering section should stand. Consequently the petitioner will be entitled to the rights and benefits accruing therefrom.
12. The writ petition is accordingly allowed. There will be no order as to costs.