GIAN SINGH versus THE STATE OF PUNJAB on 11 September 1961

3 :i.O.R.. SUPREME COURT REPORTS

GIAN SINGH

v.

THE 8TATE OF PUNJAB

(P. B. GAJENDRAGADKAR, K. SUBBA RAO, M. HrnAYATULLAH, J. C. SHAH and RAGHUBAR DAYAL, JJ.)

Public Servant-T•h•ildar in Punjab--R•flV>f!fJl /roM servict-Financial Oommis&ioner, if competent to rttnotJt-Pu1tjab Land R•venue Act, 1887, 8,9,-Punjab Teh•ildari Rulei, 1932-floi:ernmrnt of India Act, 1935 ( 25 & 26 Ged. 5 ch,42) •· 241-Go1Jfrnment of India (Co nmencement and Tran&itory Proviaion~) Vrd.r, 1936 cl. 15 (2)-Adaptation of Indian Laws Order, 1937.

The Punjab Tehsildari Rules, 1932, were framed under s. 9 of the P.rnjab Land Revenue Act, 1837, by the Finan-cial Commissioner. They conferred authority upon the Financial Commissioner to appoint and to rernove Tehsila d:ir~ from service. Aftt:r the enactment of the Government of India Act, 1935, '· 9 was amended by the Adaptation of Indian laws Order, 1937, and the pfJwer of the Financial Commissioni:-r to make such rules was abrogated. The appellant, who was a Tehsildar, was dismissed by the Financial Commissioner in 1953. The appellant contended that the Financial Commissioner was not competent to remove him from service as his p')wers to make rule' regarding appointment and rrmoval from se1vice ofTehsildars were abrogated and the Tehsildari RHles lost their vitality a• they .were not preserved by the Government of In.d ia Act, 1935, or by the Adaptation 01 der.

Hfld, (per Gajendragadkar, Subba Rao, Hidayatullah and Shah,JJ., Dayal, J., contra.) that notwithstanding the abrogation of the powers of the Financial Commissioner to frame rules, the "fehsildari rules, 1932 continued in force and the Financial Commissioner was competent to re-move the appellant from Service. By the combined operation of cl. 15 (2) of the Government of India (Commencement and Tran .itory Provisions Order, 1936, and the Adaptation Order, 1937, the condition of service app 1icab1e to civil servants re·· mained unaltered, until other provisions were made under the Government of India Act, 1935. !"hough s. 241 of the Govern-~ ment of India Act, 1935 provided that the conditions of service .. of persons serving in connection with the affairs of a province, were to be such a~ may be prescribed by rules made by the Governor, or by persons authorised by him, s. 241 was itself Subject to cl. 15(2) of the 1936 Order. It was not shown that lfMJ

Gia11 Sinth v. Th, Statt of Pun1al>

SW].

516 ' SUPREME COURT REPORTS

(1962J

)>,.

th'Se rules were superseded or abrogated by the Civil Service Rules made by the Government of Punjab in 1941.

Per, Dayal, J.-The Financial Comn1issioncr was not the competent authority to remove the appellant from service. Section HI (IJ wh;ch provided that the Governor would be the appointing and consequently the dismissing authority for all civil servants in the service of the Province abrogated the Tesildari Rules which \\'ere inconsistent with it and cl. 15 (2) of the Transitory Order, 19%, did not save them. Even if rl. 15 (2) preserved these Rules, the reference to the Financial Commissioner th.rein had to be read as refe-rence to the Governor in view of para. i of the Adaptation Order. The Civil Service Rules framed by the Govern-ment in 1941 governed the conditions of service of Teh•ildars and Naib Tehsildars and the Tehsildari Rules ceased to be opera-tive from 1941 even if they continued to be effective till then in vie\\• of the provisions of the Transitory Order. From April I, 1953, the Punjab Civil Service Rules, 1953, were in foree which applied to the case and the Financial Commission" \¥as not sho\vn to be one of the authorities prescrib~d by the Government in the rules regulating the appointment and conditions of service of Tehs;ldars and Naih Teh•ildan.

C1nL APPELLATE JumsmcTroN : Civil Appeal ~o. 515 of 1960.

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Appeal from the judgment and order dated Septcm her 3, 1958, of tho Punjab High Court in Letter8 Patent A ppcal No. 82 of J9ij7.

lihagat Singh Chau:lri ancl K. R. Choudhri, for the appellant.

S. M. Sikri, Aduowte-Geneml for the State of Punjab, Gop~l Singl1 and P. n. Menon, for the rcilpondcnts.

HHi I. Dcccm her 11. The .Judgment of Gajondra-gadknr. Subba Rao, Hiclayatullah and Shah, JJ., was dcliverf'd by SHAH, .J.-Sardar Gian Singh-hereinafter Called the appellant-was recruited in I 92i as a Naib Tehsildar m the Revenue department of the Province of Punjab. He was confirmed in that • ·· rank m l!l39. In l!l46, he was promoted to the rank of officiating Tehiildar and was posted as

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Tehsildar at Hansi in the district of Hissar on September 22, 1947, and since then he held the post of Tehsildar at diverse places.

On August 20, 1952, the appellant was served with a charge sheet by the Financial Commissioner, Punjab containing eleven heads of charges of misappropriation, misconduct, irregularities and dereliction of duties committed by him. The Deputy Commissioner, Hissar was appointed to hold a departmental enquiry into those charges. On August 28, 1953, the n,ppellant was served with a notice to show cause why on the findings recorded by the enquiry officer, he should not be dismissed from service. The appellant submitted his explana-tion. The Financial Commissioner by order dated October 26, 1953 ordered that the appellant be dismissed from service. An appeal preferred against that order was dismissed and application to the Government of Punjab to revise the order of the appellate authority also proved infructuous. The appellant then presented a petition under Art. 226 of the Constitution to the High Court of Punjab for an order quashing the order of dismissal con-tending inter alia that (a) reasonable opportunity was not given to the appellant either before the enquiry officer or before the Financial Commissioner to rebut the allegations contained in the charge sheet, and (b) that the Financial Commissioner was incompetent to pass the order of dismissal. Bishan Na.rain, J., who heard the petition rejected the first plea, but in the view of the learned Judge, the Financial Commissioner ceased to have any power to make rnles regnlating the appointment and dis-missal of Tehsildars because of the amendment of the Punjab Land Hevenue Act, 1887 by the Govern-ment of India (Adaptation of Indian Lawe) Order, 1937 and the authority derived by the Financial Commissioner under those rules to dismiss Tehsildars was also abrogated, and therefore the order of the Financial Commissioner dated October 26, 1953 was void and of no effect. In appeal under cl. 10

Gian Sinlh v. Tltt State of Punjab

Shah].

J9~1 Gian Si•ith y, Tiu Stutr of p,,,,jtzb Shoh J.

518 SUPRE.\IE COlJRT REPORTS (1962]

of th•· Letters Pat.mt, a Division .B<·nch of the High nuurt reversed the order passed hy the Rishan ~arnin, .J. Th<' High Court hclcl th~,t. by virtue of els. 9 anrl l 0 of tlw Gowrnment of India (Adaptation of Indian Laws) Order', l!J37, the rules framed under the Punjab Land lt('venuc Act, 1887 continued to remain in op<,ration even after the Act was amond,,<l hy the Adaptation of Indian Laws Order, 1937 and the Financial Commiosiun .. r rem:dned inveHt<·d with tlw power to dismiHs th<, appellant from sn\•ice. Th" High Court accordingly dismissed the potition of the' :ippellant. The appellant h:ui appt!aled tu this Conrt against the order of tho High Court, with <'crtificates of fitnrs~ under Art. 133 of the Constitution.

Section 9 of the Punjab Land I~ev<•nuo Act, 1887, as it wa.;r originally enacted, stood a.s follows :

I~ev<•nuo

"The Provincial Government "hall fix: the number of Tehsildars and Naib Tchsildars to be <Lppoint<-cl, and the Financial Commis~ioncr may make ruli·s for thnir appointment and dismiHsal".

Under s. 9 read with R. 28 oft.he Act, rules Wl'rc

framed in 1932 bv the Financial Commi&~ionrr Punj:ib, and authority to appoint Tehsildars and to remove them from ttervico w.·1s, by these rulee, oonfcrr"d upon thn Financial CommisHioner. After the enactment of the Govcrnmont of India Act, 1935, s. 9 of the Pwijab Land Revenue Act was amended by the Adaptation of Indian Laws Order, 19a7, and the power of the Financial CommiHsioncr to mako rules under B. 9 was abrogated by t lw deletion of the- words in that section following the word "appointed". &,ction 28 which authorised the Financial CommisHioner to make rules to rcgulato appointments, duties, l'molumcntfi, µuniHhmcnt<i etc. of officers amouget others of Kanungos, Zaildars, Inamda.rs and village officers, wa.s also a.mended

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3 S.C.R.

SUPREME COURT REPORTS

and that power was entrusted to the Provincial Government. Undoubtedly, by the amendment of s. 9, the Financial Commissioner was deprived of the power to make rules for appointment and removal of Tehsildars and Naib Tehsildars, and on account of the repeal, except as to transactions past and completed, the power may in the absence of a provision to the contrary, be considered as if it had never existed. But the vitality of the Tebsildari Rules and of the powers of the authorities competent thereunder after the Government of India Act, 1935 was enacted, rested upon certain provisions made by virtue of the authority conferred by that Act. By s.310 of the Act, to facilitate the transition from the Government of India Act, 1915 and from the provisions of Part XIII of the Act of 193fi to the provisions of Part II, power was conferred upon His Majesty, by Order-in-Council among others to direct that the provisions of the Government of India Act, 1935, shall, during such limited period as may be specified in the order, have effect subject to such adaptations and modifications as may be so specified. In exercise of this power, on July 3, 1936, the Government of Indirt (Commencement and Transitory Provisions) Order, 193G was promulgated and by cl. 15(2) it was provided:

"Uutil other provision is made under the new Act, the conditions of service applicable to any person or any class of persons appoin-ted or to be appointed to serve His Majesty in a civil capacity in fodia shall be the same as were applicable to that person or, as the case may be, to persons of that class imme-diately before the commencement of Part III of the new Act."

By cl. l2(d) of the Adaptation of Indian Laws Order, 193 i issued in exercise of authority granted by s. 293, it wa~ provided, in so far as it is material, that:

Gian Singh v. The State of Punj.si Sh•h ].

"No repeal effected by this order shall

affect the operation of sub-paragraph (2) of ·paragraph fifteen of the Government of India (Commencement and Transitory Provisions) Order, 1936."

GimSinth v. Thi State of Punjab, Shah ]. , , '·

· By the comblned operation of cl. 15(2) of the ' Commencement. and Transitory Provisions Order, . 1936 and. the . Ada.ptation of Indian Laws Order, ,· 1937, the conditions ·.of service applicable to civil servants continued to<remain unaltered, until other : ·provisions were made under the Government of India Act, 1935. Again, the Adaptation of Indian .Laws Order, 1937 expressJy·provided by-01. 9 that . the rules framed under the Act-adapted or modi-. fied-shall not be rendered invalid. -By that clause which provided : -

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"The provisions of this order whiCh adapt

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"The provisions of this order whiCh adapt or modify Indian laws so as to· alter the manner in ·which, the authority by which, or• the law under or in accordance with which, any powers are· exercisable, shall ·not · render-· invalid · any notification, · order, commitment; attachment, bye-law, rule or regulation duly ·made or issued, or anything duly done,·before the commencement 'of ·this order; ... ·~~················~·····4·····''

Notwithstanding the abrogation of the powers of the Financial Commissioner ·to frame rules, the Tehsildari Rules,_1932 remained in force.

· Ancl by cl. 10 which provided:

~'Save as provided by this order, all

·powers 'which under any law in force in ·British 1India, or in any part of British India, were immediately before the commencement . of part III of the Government of India Act, ' 1935 vested in, or exercisable by, any person or authority shall continue to be so vested or exercisable until other provision is made by \"; ;i S.C.R, SUPREME COURT REPORTS

some legislature or authority empowered to regulate the matter in question."

The authority of the Financial Commis_sioner under the mles which remained in force by virtue of cl. 9 was exercisable except as provided by the Adapta-tion of Indian Laws order, 1937. By s. 241 (2) of the Government of India Act, 1935, the condi-tions of service, in the case of persons serving in connection with the affairs of a Province, were to be such as may be prescribed by rules made by the Governor, or by persons authorised to make rules for that purpose. But this provision was, till other provisions were made, subject to cl. 15 (2) of the Commencement and Transitory Provisions Order, 1935. Clause 7 of the Adaptation of Indian Laws Order on which reliance was placed by counsel for the appellant in support of his contention that the Governor alone could exercise the powers of dismissal under the Rules because he was the corresponding authority, does not also assist the appellant. The clause applies only to those cases where an authority competent at the date of passing of any Indian law, to exercise any powers or authorities or discharge any functions, ceased to exist and a corresponding new authority was constituted by or under any Part of the Government of India Act, 1935 : the clause did not apply where only the powers of an authority were vested in another authority, the former authority not otherwise ceasing to function. The condition of service of civil servants having remained unalter-ed even after the Government of India Act, 1935 was brought into operation by virtue of the Commencement and Transitory Provisions Order 1936, and the Adaptation of Indian Laws Order h~ving made express provision saving the rules as well as the authority granted under the rules to the Financial Commissioner, the order of the Financial Commissioner dismissing the appellant from service was not unauthorised.

Gian Sinth v. The State •f Punjalt Sh.J.J.

Gi1111 Sin:h v. TM St•lc •! PurJ•i Sh•h ].

522 SUPREME COURT HEPOHTS [1962]

The contention of counsel for the appellant IC that by tho enactment of s. 241 of the Government of India Act, Hl35, civil scrvant8 serving a. Province could be dismi~se<l after that Act was brought into operation only by the Governor of the ProYince and by no other authority has therefore no fo rec.

Counsel submitted that in anv event, fre11h rules govorning the civil snviccs ·in the Punjab having beon frnmPd in l!J.11 by the Gov<'rnrnent of th" Province of Punjab, the Tchsildari Rules, I!l32 even if they w1.•rc· not superseded by the amend-ment made by the Adaptation of Indian Laws Order, I 937 in the Punjab Land Hcvcrnie Act, 1887 stood expressly repealed, and the powers of the Financial Commissioner to dismi8s a. Tchsilda.r could not thereafter, be exercised. But the plea. that fresh rules wern framed in Hl41 in superncssion of the Punjab Teshsildari Rule8, 1932 was not adv1mced in the High Court. In I 941, fresh Civil Services Rules applicable to the Punjab were un-doubtrrlly promulgated; it is however unnecessary to consider whether under the Punjab Civil Service Rules, 1941 th<~ Governor alone waR competent to dismiss from S!'rvice a public servant of the Provin-cial Service or subordinate Sen· ice or officers holding special posts or any other Government ser-vant or class of Government servants to whom thoee rules applied. It. was exprcRsly enacted in r. 1.4 that the Civil Services Rules were not to apply to any person for whose appointments and conditions of service special provision was made by or under any law for the time \,ping in fore!'. Special provision did iu fa<·t f'Xist for the appoint-ments and Conditic>n of sen ice of Tehsildars under the law for the time hcing in force and those rules arc not shown to han: been superseded or abrogated by the Civil Services Rules. Counsel for the appellant asscrt<:cl that Tchsildars be-longed to the Subordinate Services, Class III, and the rules framed in 1941 under s. 241 of the Govern-meH t of India Act superseded tho Tchsildari Rules, ·~

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of 1932. The Advocate General appearing for the State of Punjab submitted that Tehsildars were not included in the Subordinate Services, because no notification in that behalf was issued. As we have already observed, the question as to the . effect of the rules framed in 1941 under s. 241 of the Government of India Act was never raised or argued before Bishan Narain, J., nor before the High Court in appeal. It is difficult for this Court to entertain any plea depending for its adjudica-tions on notifications said to be issued by the Government from time to time, raised for the first time in appeal, when such notifications have never been brought to our notice.

GieJn Sin:h v. Tht Statt •f 1'1mja.i Sh•h ].

On the whole, we are of the view that the record does not support the contention that the Punjab 'l'ehsildari Rules were not in operation at the date of dismissal. There is also nothing to show that the Financial Commissioner was not invested at the material time with the power to dis-miss a Tehsildar.

The appeal therefore fails and is dismissed with costs.

RAGHUBAR DAYAL, J.-I regret my inability to agree with the view that the Punjab Tehsildari Rules of 1932 applied to the service of Tehsildars and Naib Tehsildars in 1953.

Rqhu,ar Dtr.,J•l J.

The appellant was an officiating Tehsildar in 1953 in the State of Punjab, when he was dismissed by the Financial Commissioner, Punjab, on October 26, 1953. Having failed to get the order changed as a result of his appeal and a revision to the Government, he field a petition under Art. 226 of the Constitution in the High Court of Pnnjab and prayed for his reinstatl1ment from the date of his dismissal by the issue of an appropriate writ. Among the grounds in support of his prayer, the petition mentioned that the Financial Commis-sioner was not competent authority to order the dismissal of a Tehsildar in view of Rule 2.14 of the Punjab Civil Services Rules, (hereinafter called the Civil Services Rules), read with Chapter XV, 1961 Gitm Sinzh v. Th. State of l'unj•I R11Jwhar D11J·a{ ].

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524 SUPREME COURT REPORTS [1962) the Rules being framed under Art. 30!l of the Constitution.

J.

It wall contended on behalf of the Stat-0 that the petitioner's terms aml conditions of service were governed by the Punjab Tehsildari Ru lcs, Hl32 (hereinafter called the Tchsildari Rules) which empowered the Financial Co.lmllissioner to appoint and dismiss Tchsildars.

Bishan Kamin, J., who heard the petition, allow!'cl it holding that the Tc·hsilclari Hules ceasPd to operate since the amcn<lmcnt of~. !l of the Punjab Land Revenue Act, 188i (Act XVII of 1887), here-inafter called the Revenue Act), by the Government of India (Adaptation of Indian Laws) Order, l!l3i, (hcrei"aft.er called the adaptation Order), which dclctl'd that part of the .section which empowered the Financial Commissioner to make rules for the appointment and removal of Tehsil<lars and Na.ib Tehsildars, and in the exercise of which power tho Tehsildari Rulos had been made bv the Financial Commissioner, there being nothing in the Govern-ment of India Act, 1935, (hereinafter ca.lied the Act) or in the Adaptation Order proscrving the validity of these Rules notwithstanding the ·repeal of the relevant provision in s. 9 of the Revenue Act. He observed in his order :

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"It is nobody's case tha.t the Punjab Civil Service Rules made after the 1935 Act Contain any provision which keeps these rules of 1932 alive an<l in force. Neither is it the respondent's case that after the amendment of Section !l of the Punjab Act tho Governor or the Provincial Government ever delegated the power of appointments and dismissals of Teh8ild11rs and ~aib Tchsildars to the Finan-cial Commissioner."

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'l'he Tchsi ldari Rules, therefore, according to him, ,.} being inoperative after lhc commencement of the Act, could not have become operative under the •

Constitution, by virtue of the provisions of Art. 372 of the Constitution. Holding that the Civil Services Rules which governed all States services governed the services of Tehsildars and Naib Tehsildars and that nothing in those Rules em· powered the Financial Commissioner to appoint or dismiss a Tehsildar, he allowed the petition, ordering that the appellant's dismissal was void and of no legal effects.

The State preferred a Letters Patent Appeal. The grounds of appeal mentioned that the Tehsil-dari Rules were in force on January 25, 1950, in view of ss. 292 and 293 of the Act and also s. 18 (3) of the Indi1tn Independence Act, and thereafter under Art. 372 of the Constitution, and that the finding that the conditions of service of Tehsildars were governed by the Civil Services Rules was wrong.

The appellate judgement considered that the Tehsildari Rules were made either in the exercise of the powers conferred by the Government of India Act, 1919, or in the exercise of the powers conferred by the Revenue Act, and came to the conclusion that in the former case they. continued to be effective rules in view of s. 276 of the Act, and Art. 313 of the Constitution, it being not shown that those rules had been replaced by an-other set of rules or those rules were inconsistent with the provisions of the Act or the Constitu-tion and that in the latter case the rules conti-nued to be in force by virtue of paragraphs 9 and 10 of the Adaptation Order which made it clear that the Financial Commissioner who had the power to appoint or dismiss a Tehsildar continued to exercise those powers, those powers having been not abrogated or withdrawn. The Letters Patent Appeal was consequently allowed and the writ petition was dismissed. It is against this order that the appellant has filed this appeal by certi-ficate granted by the High Court.

Gian Sin:h v. 1'he State of Pu'!jai Raihuh•r D•v•l ].

Jlfl Gian Sinzh v. Tht St•tr 1,f Pu'!J·•• lf.a1J111••r Dtt,"l•l J.

526 SUPREME COURT REPORTS [1962)

It is contended for the appellant that the Teh· eildari Hules ceased to be operative from the com-mencement of the Act and in Any case, ceased to be opcrati,·c from the 1st of April 1941 when the Civil Services Rules madt> by the Governor came into force and th11t therefore the Financial Com· . missioner was not competent to dismiss the appellant.

It has not been urged for the respondent in this Court that the Tchsildari Rules were fram<'d under the Govemm<'nt of India Act of 1919 and that therefore thev continued to he in force i11 view of s. 27G of the Act, and Art. :ll 3 of the Constitution. The cont!'ntion, even if it had hr!'ll raised, coul<l not h:n-c succeeded, aR a Rule empowering a financial Commissioner to appoint and dismiss Tehsildars could not have been consis-tent with the provisio1rn of s. 241 of the Act which laid down that, except as expressly provi-ded by the Act, appointments to the Civil Herviccs or any civil po8ts under the Crown in India would be made in the c11so of ser1•ices of a province and posts in connection with the affairn of a pro· vinco by the Go,·crnor or such persons as he may direct.

It hM not been urged before us, that the Gov<>mment did, subsequent to the {'nforccm<'nt of the Act pass any order <'mpowcring the Financial Commissioner to appoint and dismiss Tchsildars.

The order of the Financial Commissioner was supported on behalf of the State on the pro· visions of paragraphs fl and 10 of the Adaptation Order of rn:n and rule I. 4 of th<· Civil Services Rules, 1941, and at the further hearing, in connec-tion with the effect of paragraph 7 of that Order to which no roforcnce hacl been made at the first hearing, on the provisions of cl. (2) paragraph lfi of Government of India (Commencement and Transiton Provisions) Order, 1936 (hereinafter

38. C.R. SUP~EME COURT REPORTS

J( called the Transitory Order), and paragraph 12 of the Adaptation Order. The contention really is that the Tehsildari Rules continued to be valid both in view of paragraphs 9 and IO of the Adaptation Order and the Transitory Order till such time as the Governor made the new rules and that the Tehsildari Rules continued to be in force after the 1st of April 1st of April of April April 1941 since the Tehsil-dars were persons for whose appointment and conditions of service special provision had been made under those rules.

-( force after the 1st of April 1st of April of April April 1941 since the Tehsil- I shall first deal with the effect of the pro-visions of the Adaptation Order on the Tehsildari Rules.

Section 292 of the Act reads :

"Notwithstanding the repeal by this Act of the Government of India Act, but subject to the other provisions of this Act, all the Jaw in force in British India immediately before the commencement of part III of this Act shall continue in force in British India until altered or repealed or amended by a competent Legislature or other competent authority."

Section 293 .of the Act reads :

"His Majesty may by Order in Council to be made at any time after the passing of this Act proviie that, as from such date as may be specified in the Order, any law in force in British India or in any part of British India shall until repealed or amen-ded by a competent Legislature or other competent authority, have effect subject to such adaptations and modifications as appear to His Majesty to be necessary or ex-pedient for bringing the proTisions of that law into accord with the provisions of this Act and, in particular, into accord with the

Gian Sinth v. Tht Statt 1/ Pwijafl

528 SUPREME COURT REPORTS

l!MI Gian Sinth v. Tlit Stalt 1J P'llnja; R.,Jzi;~ar D•yt:l ].

provisions thereof which reconstitute under difforent names governments and authorities in India and prescribe the distribution of legislative and executive powers between the Federation and the Provinces :

Provided that no such law as aforesaid shall be made applicable to any Federated State by an Order in Council marlc under this rnction.

In this section the expression 'law' does not include an Act of Parliament, but incJu. dt·s any orclinance, Order, byc-la.w, rule or regu-lation having in British India. the force of law. It is in tho exercise of the power conferred by thi11 section that tho Adaptation Order was issued. Such provisions of the existing Ja.w were to continue in force as were consist<mt with the Act. Power was vested in His Majesty under s. 293 of the Act to modify the provisions of existing l1tws in such man-ner as may be ncces~ry for bringing them into accord with the proYisions of tho Act and, in parti· cular, to bring them into accord with the pro\"isions of the new Act which ro-constituted under different names, governments and authorities in Im!i1t.

Paragraph 3 of the Adaptation Order provided that tlw laws mentioned in the Schedules would have effect subject to the adaptations and modifi-cations directed by those Schedules until they are repealed or amended by a competent authority or by a competent Legislature.

Section 9 of the Revenue Act was modified by the Adaptation Order. Before such modifica-tione, it read:

"The Provincial Government. sh11.ll fix the number of Tehsil<larR and Naib Tebsildars to he appointed and the Financial Commissioner mAY make rules for their appointment and "'"''''lVQ . l" •

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02!)

'£he Adaptation Order substituted the word 'State' for the word 'Provincial' and omitted the word11 after the word 'appointed.' It follows that the power of the Fin.ancial Commissioner to make rules for the appointment of Tehsildars and Naib Tehsil-dars did not exist any longer, the provisions for such :i. power having been repealed by the Adapta-tion Order. The consequence of such a repeal is that such a power would be deemed to have never existed in the Financial Commissioner and that the rules framed by him would be deemed to be rules framed without any jurisdiction to make them. This is not really disputed and has the support of the observations in Watson v. Winch('). 'fhe Revenue Act, after amendment, did not provide about the appointment of Tehsildars and Naib Tehsildars. This must have been in view of the statutory provi· sion existing for the purpose in sub-s. 1 of s. 241 of the Act whose relevant portion is:

"Except as expressly provided by this Act, appointments to the civil services of, and civil posts under, the Crown in India, shall, after the commencement of Part III of thi1 Act, be made:- x x x x x x (b) in the case of services of provi-nce, and posts in connection with the affairs of a province, by the Governor or such person as he may direct."

It is to be noticed that the modifications made by the Adaptation Order to ss. 7 and 8 deleted the provisions empowering the State Government to re-move the officers it could appoint under the provi-sions of those sections.

Paragraph 9 of the Adaptation Order reads: "The provisions of this Order which . adapt or modify Indian laws so as to alter thr manner in which, the authority by which, or the law under or in accordance with which ,

(1916) I K. B. 688.

1961 Gian Sinzh v. Tiu Staie of Pw:ijab Ra/l,OObar J>ayal ].

1961 CimiSinth v. 'l'ht SWe of Punja) 11.thub" Dayal ].

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530 SUPHEi\IE COURT REPORTS [1962j

any powers arc cxcrcisRble, shall not render ,.. invalid any notification, order, commitment, attachment, bye-law, rule or regulation duly made or issuer!, or anything duly rlone, before the commencement of this order; and any such notification, ordC'r, commitment, attach-ment, bye-law, rule, regulation or thing may be revoked, varier! or undone in the like manner to the like extent and in the like circum-stanc<'s as if it had been made, is8ued or done after the commencement of 1 his Order by the competent authority and under and in accor· dance with the provisions then applicable to such a case."

The A'la.ptation Order modifies the law under which the Tehsilda.ri Rules were framed. The result of the pro·l"isions of paragraph !I of Adaptation Order is that the Tehsildari Rules were not renrlerod inn1lid, and that, for the purpose of revoking, varyin<> or undoing the rules, they were to be dcem1>d to b;: ma.de undor the Act.. There is nothing in this para-graph t~ provide thnt the rules must continue in the same form in which they exist, even if they were inconsistent with tho provisions of the Act. • Such could not have been provided by the Adapta-tion Order and has not been provided. The provi-sions of this paragraph apply when specified modi-fications aro ma.de by the Order not when the Act itself affcctl! similar· provisions of the Indian L11w. If something contrary to the rule has already been provided in the act, no further occasion for making II. that change in the rule by a competent Lcgisla.turo or authority a.rises. A subsequent change by a competent authority is contemplated only when no chauge has already been made in those rules on account of thn prodsions of the Act. The Tchsil-dari Rules therefore became inoperative in BO far as they provid<'d that the Financial Commissioner could appoint and dL~miss Tchsildars and Naib, • T<'hsildara, llR such a provision was inconsistent ••

SUPREME OOURT REPORTS

38. d.R.

I. with the provisions of s. 241 of the Act, which vests the power of appointment in the Governor or in any other person in accordance with his directions. The power of appointment carries with it the power of dismissal.

In Pradyat Kumar v. Chief Justice of Calcutta(') this Court had to consider whether the Chief Justice -( of the Calcutta High Court had power to dismiss an employee of the High Court. In this connection, it was not disputed that the Chief Justice was the authority for appointing the appellant. But it was contended that he had not the power to dismiss. The contention was that the appellant was a public servant governed by the Civil Services (Classifica-tion, Control and Appeal) Rules of 1930, as ' amended from time to time and that those rules continued to apply even after the Government of India Act, 1935, and later when the Constitution of India came into force. It was not disputed that 'dismissal' was a matter falling within 'condition of service' of a public servant as held by the Privy Council in North West Frontier Province v. Suraj Narain Anand('), and that the power of making _. rules relating to the conditions of service of staff of the High Court was vested in the Chief Justice of the High Court under s. 242(4) taken withs. 241 of the Act and also under Art. 229(2), of the constitu-tion. It was however contended that the Chief Justice of the High Court bad not framed any such ,-._ rules and that therefore, by virtue of s. 276 of the Act and Art. 313 of the constitution, the Civil Services Rules continued to apply to the appellant. In considering the contention raised, this Court 11aid at page 288 :

"It will be noticed that cl. 8 (of the Letters Patent of the High Court, 1865, as amended in 1919) speci:fically vests in the Chief Justice the power of appointment, but makes no mention of the power of removal \

(I) A~I.R. 1956 S.C. 235.

(2) A.J.R, 1949 P,C. 112.

· 1961 Giari $ing'1 v. The State of hnj•b Raghuba\ Da,Yal ].

1961 GiaJt. Sinth v. Tli• Slat"/ PWtjab

Rag/lobar D...,.J ].

SUPREME COURT REPORTS

[1962] • Rut

or of making reglllutions or provisions. Rut it is obviouR from the last portion of cl. 4 that such power was taken 1o he implicit under cl. 8 and presumably as arising from the powor of appointment."

It was again said at the same page in considering the powers of the Svprcme Court of Calcutta under the Charter of 177+ :

•

"The power of removal or of taking other disciplinary action as regard~ such appointees was not. in tBrms granted. Rut there is historical evidence to show that the power of appointment conferred under tho Charter was always understood as comprising the above ~­powers."

And a.gain, it wa.s said :

"Thus it is clear that both under tho

Charter of the Supreme Court as well as under the Letters Patent of the High Court, the power of appointment was throughout understood as \'esting in the High Court or the Chief Justice, the complete administrative• and disciplinary control over its staff, inclu. cling the power of dismissal."

It was further said, at pa.ge 201:

"It must be mentioned, at this stage, that so far as the power of dismissal is concerned, tho position under the Constitution of ID~ is not open to any argument or doubt. Article 229(1) which in terms vcst,s the power ofmppointm~nt in the Chief .Justice is equally cffocti<:c to yest in him the power of <lismissal.

This results from s. 16, General Clauses Act which, by virtue of Article 367( I) of th~ Constitution applies to tho construction of tho word 'appointment' in Art. 229(1). Section 16( l) General Clauses Act, clearly provides SUPREME COURT REPORTS

that the power of 'appointment' includes the power 'to suspend or dismiss'. Paragraph 7 of the Adaptation Order reads:

1961 Gian Sin~h v. The Sia" of Punjab --· Raghubar Dayal J.

"Subject to the forgoing provisions of this order, any reference by whatever form of ,.,-ords in any Indian Law in force immediately before the commencement of this order to an authority competent at the date of the pas-liing of that law to exercise any powers or authorities, or discharge any functions, in any part of British India shall, where a correspon · ding new authority has been constituted by or under any Part the Government of India Act, 1935, for the time being in force, have effect until duly repealed or amended as if it were a reference to that new authority."

I am of opinion that in view of paragraph 7 of the Adaptation Order quoted above, reference to to the Financial Commissioner in the Tehsildari Rules dealing with the appointment and removal of Tehsildars aud N aib Tehsildars be taken to be a reference to the new authority constituted under the A. Act for their appointment and dismissal. The authority for appointment and dismissal was the Financial Commissioner. Corresponding new authority, i. e., a new authority whirh has power to appoint and dismiss the Tehsildars and Naib Tehsildars, is the Governor, in view of s. 241 of the Act, and therefore, reference to the Financial ~ Commissioner in the Rules should be taken to be a reference to the Governor, or to such authority as be appointed by the Governor for the purpose, so long as those rules continued to be in force subse-quent to the commencement of part III of the Act, i.e., till they are repealed or amended by new rnles. I do not agree with the contention for the State that since the office of the Financial Commissioner { did continue to exist; the provisions of paragraph '7 of the Adaptation Order cannot be applied. The worq 'qew' wjtq reference to the authority, doe~

1981 GiaSirz~ v .. Tiu Sl4te of P<Jnj11b SUPP.E~IE COURT REPORTS

[l!l62]

not necessarily lead to the conclusion that the office " in which a particular authority was veeted under the old law must cease to exist and that it is only thC'n that any reference to that old authority would be taken to Le a reference to the ne'" authority on which that power is conferred. Jn m,v opinion, the expression 'corresponding new authority' means a new authoritv on which the power \l:hich was exercised Ly the ~&rlier authority harl been conferred.

•

Paragraph lO of the Adaptation Order rt'a.ds:

"Save as provided by this order, all powers which ur,der any law in force in British India, or in any part of British India, were immcdiatclv boforo the commencement of Part III of th~ Government of India Act, 1935, vested in, or exercisa.Lle by any pcreon or authority shall continuo to Le so vested or exercisable until othor provision is made Ly some legislature or authority empowered .to regulate the matter in question."

·-

The only paragraph which has a bearing on the ., exercise of powers in this Order is paragraph 7. The result of reading paragraphs 7 and I 0 together is that if a new authoritv had been constitutt>d for the exercise of any powers or discharge of any functions, those powers will no more remain vested in the old authority, but when no such correspond-in"' new authoritv has been constituted, the old e • .,, authority will continue to exercise those powers till other provision is validly made.

I am therefore of opinion that the provisions of

I am therefore of opinion that the provisions of paragraph IO of the Order arc not to Le constructed in a. wav to make tho old authority continue to exercise that power, when the Government of India Act itself constitutes another authority for that L purpose. If the Adaptation Order be so conRtrucd, ,. the adaptation made by the Order would hardly •

3 S.C.R. SUPREME COURT REPORTS -

-:t be in furtherance of the provisions of s. 293 of the Act.

In this connection I may quote the very apposite observations in Pradyat Kumar v. Chief Justice of Calcutta ([1]) at page 290 :

"The continued application of the Civil Services Rules without such adaptation would result in the anomalous position, that although the 1935 Act specifically vests in the Chief Justice the power of appointment and of framing rules regulating conditions of ser-vice including the power of dismissal and hence thereby indicates the Chief Justice as the authority having the power to exercise disciplinary control, he has no such disci· plinary control merely because he did not choose to make any fresh rules and was con· tent with the continued application of the old rules."

The same anomaly would arise under the present case if in spite of the Act vesting the power of appointment and of making rules in the Governor, he be deemed to have lost that power merely because he did not frame any fresh rules.

Section 310 of the Government of India Aot, 1935 reads thus :

"( 1) Whereas difficulties may arise in relation to the transition from the provisions of the Government of India Act, to the pro-visions of this Act, and in relation to the transition from the provisions of Part XIII of this Act to the provisions of Part II of this Act :

And whereas the nature of those diffi-culties, and of the provision which should be made for meeting them, cannot at the date of the passing of this Act be folly for<:• seen: \I) A.I.R. 1956 S.C. 2~1i:

1911 Gian Si.nth v. The State of Pajab Raghuliar D•yal J.

19~/

Gian Sin.(h V. Tiu Sta!t of Prmjal Ra:huO•r Da)·•l ].

SUPRE!llE COURT REPORTS [1962)

Now therefore, for the purpose of facili-tating each of the said transitions His l\Iajesty may by Order in Council-- (a) direct that this Act and any provisiom of the Government of India Act still in force shall, during Ruch limit-ed pcriocl n.s may he specified in the Orclcr, have effect subject to such adap-tations nncl notifications as may he so specified :

(h) make, with respect to a limited

period so specified such temporary pro-vision as he thinks fit for ensuring that, while the transition is being effected and during tbc period immediately following it, there are availn.ble to all governments in India nnd Burma sufiicient revenue to enable the business of those governments to he carried on ; and

(c) make, such other temporary pro-

viRions for tho purpose of removing any such difficulties as aforesaid as may be specified in the Order.

(2) No Order in Council in relation to

the transition from the provisions of Part XIII of this Act to the provisions of Part II of this Act shall be made undn this section after tho expiration of six months from the establiohmcnt of tho Federation, and no other Order in Council shall be made under this section after tho expiration of six months from the commencement of Part III of this Act."

Paragraph I:) o{ tho Transitory Ordrr rcad11 :

"( l) For a period of twolvo months from the date of the commencement of Part III of the new Act a person who immediately before the said date was holding an office under th8 Crown in rntli11o shall not be disqualitied J·

L

•

3. S.0.R. SUPERME COURT REPORTS 537 I

from continuing to hold that office by rea-son of the fact that he is not a British subject and that no declaration entitling him to hold the office has been made under section two hundred and sixty-two of the new Act. (2) Until other provision is made under the new Act, the conditions of service appli-cable to any person or any class of persons appointed or to be appointed to serve His Majesty in a civil capacity in India shall be the same as were applicable to that person or, as the case may be, to persons of that class immediately before the commencement of Part III of the new Act." The provisions of cl. (2) of the above paragraph are in furtherance of the provisions of cl. ( c) of sub-s.( 1) of s. 310, and not in view of cl. (a) of sub-s. ( 1) of s. 310, as those provisions do not direct in any way that any provisions of the Government of India Act 1935, or of the Government of India Act of 1919 would have effect subject to certain speci-fied adaptations and modifications and during any limited period. It follows that these provisions do not affect the operation of s. 241 ( 1) of the Act empowering the Government to make appoint-ment. In fact its operation could be affected only by any express provision in the Act itself. Power of appointment includes power of dismissal.

It is true that the conditions of service in-clude the provisions prescribing the circumstances in which a government servant be dismissed or removed from service. But the previous conditions of service will continue only till such time as other provision is made under the Act. When the Act already provided by s. 241 (1) that the Governor would be the appointing authority, the natural consequence of which was that the Governor would pe the 11-uthority to dismiss, there was nothing in 1961 Gian Singh v. The State of Punjab Raihubar Dayal J.

19~/ Gian Sin:h v. Thi Statt o_f PtJ'IJah RaghrJ;ar Da;·al ].

SUPRE:\IE COURT REPORTS

tho provisions of this sub-paragraph for tho condi-tions of service relating to dismissal to be opora.tivo sn bsequent to the coming into force of tho Aot. E1·en if it be construed that the provisions of this sub paragraph justified the continuance of the Teh~ildari Rules till other pro\·isions were made undm· the Act referoncc to the Financial Commis-tioner in these Huleti will be taken to ho reference to the Governor in \·iew of paragraph 7 of the Adaptation Order ns already held by me. It is contended for the State that nothing in the Adap-tation Order will affect these provisions in vim1' of el. (d) of paragraph 12 of the Adaptation Order whieh reads :

"(For tho avoidance of doubt it is herebv declared that)-•

no repeal effected by this order shall affect the operation of sub.paragraph (2) of para-graph fifteen of the Government of India (Commencement and Transitory Provisions) Order, I 936."

This clause simply provides for the provisions of snb·paragraph(2) of paragraph lG of the Transitory order to he not affected hy any repe:il made by the Adaptation Order, but docs not provide that the provisions of this sub-paragrnph would not he affected by the pro1'i8ions of the Act itself or of the Adaptation Order which do not repeal any law. It follow~ therefore that in the construction of the rules !:tying down the conditions of service, the provisions of paragraph 7 of the Adaptation Orcler which do not repeal any law will have to be applied and that therefore reference to the Fin:incial Commissioner in these rules will he tnken to be a. reference to the Governor.

E1'cn if the contention for the State about

E1'cn if the contention for the State about the effl'ct of snb-paragrnph (2) of paragraph 15 of the Tramitory Or<l<'r imrl of the \'arions paragrnphs of the Adaptation Order be accept<'d, the Tchsildari Rules will continue only ti!) other ruJes are µiad~

' ..

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by the Governor in the exercise of his power under a.241(2) of the Act.

The Governor of Punjab made the Punjab Civil Services Rules under s. 241 of the Govern· ment of India Act, 1935. These rules came into force from April l, 1941. The learned Single Judge held that these rules applied to the appellant and said that it was nobody's case that the Civil Service Rules, made after the 1935 Act, contained any provisions which kept those Rules of 1932 alive and in force, The judgment under appeal does not eay to the contrary. In fact it makes no reference to these rubs at all.

The learned Advocate General for the S~te submitted that these Rules did not apply to the appellant in view of cl.(ii) of r. 1.4. I do not agree with this contention. Rule 1.2 reads :

"(a) Except as otherwise provided in rule 1.4 infra, or in any other rule or rules, these ru Jes shall apply to all Government servants belongi~g to the categories mentioned below, who are under the administrative control of the Punjab Government and whose pay is debitable to the revenue of the Punjab:-

.... '

(1) Members of Provincial Services;

(2) Members of Subordinate Services ;

(3) Holders of Special Posts; and

(4) Any other Government servant or class of Governme!lt servant~ to whom the competent authority may, by general or spemal order, make them applicable.

(b) These rules shall also apply-

(1) to the persons serving on (i)the staff attached to the High Court, Lahore and (ii) Secretarial staff of. the Governor, in' respect of whom powers -to frame rules have been • • • ' • < ' ' • "

1961 Gian Singh v. The State of Punjab Ra:hubar Dayal}.

19Gl Gian Singh v. T1te Stttte of Punjab Raz/.,la' Dayal J.

SUPREl\IE COURT REPORTS [1962]

vest~d in the Chief J usticc and the governor under sections 242 ( 4) and 305 ( 2) of the Government of India Act, l!J35, respec-tively; and

(2) to tho subordinat-0 ranks of tho Pun-jab Police forces appointee! under special Acts relating to those forces in so far 11.'3 they arc not inconsistent with the provi-sions in those Acts (virle s. 2·13 of the Gov~rnmcnt of India Act, l 93;i )".

Rule 1.3 provides for the competent authority to make rules inconsistent with these mies in certain condition~ by agreement with tho person appointed. Rulo 1.4 reads.

"Theso rules shall not apply to-

( i) Any Government servant between

whom and the Gevernmcm , a specific contract or agrccmont suboists in respect of auy matter dealt with herein to the extent upto which specific 1n·oyision is made in the contrnct or :igrccmcnt ( vide rule 1.3);

(ii) any person for whose appoint-

ment and conditions of s"n·ice special provision is made by or under any law for the time being in force; uml

(iii) any Government servant or

cll\8s of Go\'ernmcnt serv3nts to whom the competent authority may, by general or special order, direct that they sh~ll not apply in whole or in part. One of such classes of Government servants is that employed only occasiormlly or which is subject to discharge a.t one month's notice or less, A list of such Govern-ment servants is given in Appendix!!."

Reliance for tho State, as already mentioned, is placed on cl. (ii) of thj.a rqJe, lt i• coqtcndoll

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I _..,

54i

that the provisions under the Tehsildari Rules for the appointment and conditions of service of Teh-sildars and N aib Tehsildars amount to special pro-visions made by or under any law for the time being in force. If rules existed for any service, and I presume that they existed for almost all services, prior to the coming into force of the Civil Services Rules, Punjab, the interpretation sought to be put on cl. (ii) would make such rules special provisions contemplated by that clause, and to my mind, the Civil Services Rules would not then apply to most of the services and persons holding posts. Such could not have been the intention of the rule-making power, and such a construction ought not to be put on cl. (ii), unless there be something which compels such a construc-tion to be placed on this clause, and which I do not find anywhere in these rules. I am of opinion that Tehsildars and Naib Tehsildars do not come under this exception. They, according to the Teh-sildari Rules, constitute the Punjab Service of Teh-sildars and N aib Tehsildars. Clause (ii) does not refer to services as such, but contemplates indivi-dual persons for whose appointment special pro-vision is made by or under any law for the time being in force. It speaks of special provisions with respect to a person. I find it difficult to hold that rules applicable to a service come within the special provisions applicable to a member of that service. The special provision contemplated by this clause ought to be made under some law or under the provisions of some law which has force when the Civil Services Rules apply to the services and that person. To hold that the Tehsildari Rules amount to such law will presume that they continued in force after the Civil Services Rules, 1941, have come into force. No such presumption can be made when this is the point to be determined.

The Tehsildari Rules were nut made under any law which was in force during the perio<~

Gian Singh v.

Th. State of Punja& Raghubar Dayal J,

1961 Gian Si1.gh v. The Stale of Punjab 11.agn.bar Dayal].

542 SUPREME COURT REPORTS [19621

subsequent to the criming into force of the Civil Service~ Rules. Thc>v were made under R. certain pru\·isiun of the Punfab Lund Revenue Act. That pro\'ioiun \\·as n:pcalccl Ly the A<lapta.tion Order in l!J:J7, and therefore, those rules cannot Le said to ban' been ma<le under anv Jaw which was in force for the time being, since· the enforcement of the Civil Services Rules. I am therefore of opinion that clause (ii) of r. 1.4 does not apply to the case of the appellant. and that therefore his case is gov· erned by rule 1.2.

cont~mplated under

The persons who are

cl.( ii) of rule 1 .4 are those with respect to whom the Act or other statutes in force lay down provisions for appointment and conditions of service.

The Act itself provides in s. 243 that the conditions of service of the subordinate r&nks of the various police forces in India shall be such as may be determined by or under the Acts relating to those forces respectively, notwithstanding any-thing in the foregoing provisions of the Act. Ref-erence to this provision is made in sub-cl. (2) of cl. (b) of rule I.'.!. There may be holdt"rs of spcci&l posts mentioned in it<>m No. (3) of cl. (a) of rule 1.2 and other officers under tJw administrative control of the Punjab Government to whom the provisions of s. 244 to 247 of the Act may apply and be thus put out of th'" Ruic making power of the Punjab Government. There may bo other Acts which lay down special provisions for the appointment and conditions of service of persons in tbe service of the Punjab Government.

Reference may also be made to Chapter XIV of the Civil Services Rul<>s, Punjab. Ruic 14.l reada thus:

"Besides the All-India Services which are under the rule making control of the SecM· tary of Sta(.(' the services under the 11dminis- r ;.

•

trative control of the Punjab Government consist of the following classes :-

(i) the Provincial Services; and

(ii) the Subordinate Services."

It is clear that every service under the Administra-tive control of the Punjab Government comes either under the Provincial Services or under the Subordinate Services. The Services of Tehsildars and Naib Tehsildars contemplated by the Tehsildari Rules must therefore come under the Subordinate Services for the purpose of rule 14.1. This is also clear from rules 14.5 and 14.6.

The Tehsildari Rules are with respect to the recruitment and appointment of Tehsildars and Naib Tehsildars and also deal with the seniority of the mem hers of the service and the penalties, includ-ing the penalty of dismissal, whi?h can be imposed upon any member of the servrne by the autho-rities mentioned in it, after following the pro-cedure laid down. The rules, it is obvious, do not refer to many a matter which affect the service and which are.dealt with by the Civil Services Rules in addition to appointment and dismissal of govern-ment servants. In matters not covered by the Tehsildari Rules, the Tehsildars and Naib Tehsil-dars must be governed by the Civil Services Rules. I cannot contemplatA that there are no rules to govern them in respect of those matters. It cannot be that these Civil Rules will apply to Tehsildars and Naib Tehsildars in certain matters and not in matters of appointment and dismissal. Clause (ii) of rule 1.4 does not make the rules partially not applicable to the persons contemp-lated by it. This consideration supports my interpretation of this clause to the effect that it does not cover the case of Tehsildars and Naib Tehsildars.

I find certain rules specifically referring to Tehsildars and Naib Tehsildars, and this, in my

.- Gian Singh v. The Stal• of Punjab Ra:hubar Doyal J.

.961 Gian Singh v, Tlte Stall of Punj~b R.,,,. •• , Da,yal ].

544 SUPREllfE COURT REPOR'fS [1962]

opinion, leaves no room for doubt that the Civil Service Rules apply to Tehsildars and Naib 1'ohsihl1>rs.

lfole 2. ]() defines 'dutv'. Clause (b) of this rule strttes that a Govcrnm~nt servant 1s also treated a.s on duty under the circumstances speci-fied in the schedule to Chapter II. The schedule referred to mentions in cl. (4) of item II that a Tohsildar or a. NaiL Tehsildar, in certain circum-stances specified therein, will Le treated to be on duty, even though he may have spent time beyond his Hphcre of duty.

Rule 5.35 deals with circumstances in which a competent authority may grant rent-free accom-modation to any government servant. Appendix 7 gives the list of government servants granted rent-free quartern, as referred to in Note 6 to rule 5.35. Tehsil<lars and Na.ib Tehsildars are included among such servants accordinr; to Serial entry No. 3.

Huie 8.23 deals wit.Ji tho authorities com pe-tent to grant certain typo of leave. These authorities are mentioned in Appendix 12. At serial No. 7 the cntrv shows that Commissioners of Divi· sions can grant· such leave to Tchsildars and Naib Tehsildars. Appendix 17, referred to in rulo 8.61 authorises tho Deputy Commissioners to grant casual leave to Tchsildars and Naib Tehsildars. Appendix 23 deals with Government Servants' Conduct Rules, l!J35, referred to in rule 14.8.

I am therefore of opinion that the Civil Ser-vice Hules of l!J4l governed tho conditions of service of 'fehsildars and Naih Tehsildars and that the Tchsildari Hules of l!J32 ceased to be operative from April I, 1941 even if thoy continued to Le effective till that date in view of the provisions of tho Transitory Order and the Adap-tation Order. Tho '.l'ehsildari Rules, therefore wero not in force immediately before the ll '

&:Si0.R.

SUPRm.m COURT REPORTS

~ coming into force of the constitution and therefore could not have continued in force itfter January 26, 1950. Article 313 provided for the continuance of such Jaws which were in force immediately before the commencement of the constitution and which were applicable to any public service and which service continued to exist after the commencement of the Constitution. Such laws -¥. were to continue until other provisions were made in that behalf under the constitution. The Gover-nor of the Punjab, in the exercise of hi1 powers under the proviso to Art. 309 of the Constitution made the Punjab Civil Service Rules which were to come into force from April 1, 1953. The ' rules corresponding to the rules of 1941 referred /r. to by me are similar and therefore, in view of my opinion that the Civil Services Rules of 1941 applied to the services of Tehsildars, and Naib Tehsildars also apply to that service.

I may just mention that rule 1.2 describes the categories of services under the administrative control of the Punjab Government diffe'rently from rule 1.2 of 1941. Members of Provincial Services ~ were placed in three categories. Those of classew I and II in the first category, those of class III iu the second and those of class IV in the third category and schcdnle to rule 14.5 gives the list of services d&clared as Provincial Services, Classes I and II. Rule 14.6 states that the Specialist Services shall >-- con&ist of such Services (other than All India and Provincial Services, Class I and II) as the Govern-ment.may from time to time by notification in the Punjab Gazette declare to be Specialist Services, and rule 14. 7 then provides that Provincial Services, Class III and IV, include persons to whom those rules apply and who are not already included in the Provincial Services Class I and Class II and the ,;Specialist Services. The Tehsildars and Naib Teh-~""llildars thus come either in the Provincial Services C1ass III or Class IV. The appellant was dismissed

Gian Sinth v. The State of Punj«b Raghubar Dayal J.

11111 I Gian Sin1h v. TJu St<J/t of PJmjab Paalbt~11rl D'!_Ja/ J.

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SUPRE!IIE COURT REPORTS [1962]

by an order of tbe Financial Commissioner dated October 26, 1953, when the Punjab Civil Services f' Rules which came into force on April I, 1953 were in force. Rule 14.!l provides that a competent authority may issue rules specifying the penaltiea which may be imposcrl on members of the services and the procedur<> for preferring appeals against the imposition of such penalties. Appendix 24 to theRIJ rules giv<·s the Punjab Civil Services (Punish-~­ment and Appeal} Rules, l!J52. Rule (j of those rules atat.es that subject to the provisions of oln.use(I) of Article :n 1 of tho Constitution of India, the authorities competent to impose any of the penalties specified in rule 4 upon the persons to whom these rules apply, shall be such as may he pres· cribed by Government in the rules regulatiniz the appointmPnt and conditions of service of such persons. It has not been shown that the Financial Commissioner is one of the authorities prescribed by the Governnrnnt in the mies regulating the appointment (Llld conditions of eervice of Tohsildars and N'aib TehoildarH. It follows therefore that the Financial Commissioner cannot be held to bo a. Competent (LU\hority to dismiss Tehsildars, in 1953. I :i.m therefore of opinion that the dismis11&l • of th('! app·llant by the Fimrncial Commissioner is illegal. I would therefore allow. the appeal with co&ts, sot aside the ordor under appeal and restore thC' order of the l<.'arned Single Judge, dated April 4, 1957.

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•

BY Con:T: In Yicw of thr opinion ofm!\jority, -...J.. the appeal is dismissed with costs.

; ,•.

Appeal dismissed.

--

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