Maheshwari Prasad v. Regional Employment Officer — 1956 DIGILAW 160 (PAT)

Judgment Raj Kishore Prasad, J. 1. In this case, the petitioners obtained a rule from this Court, on their application under Articles 226 and 227 of the Constitution, against the opposite party, for a writ, in the nature of mandamus commanding them not to give effect to the notice issued to each of the petitioners in the form (Annexure B) to the affidavit, and to terminate their services under the Union of India, and, also for a writ in the nature of certiorari quashing the said notices issued against the petitioners terminating their services. 2. The opposite party, who are the Regional Employment Officer, Bihar, and the Regional Director of Resettlement and Employment, Bihar have both shown cause against the rule issued by this Court through the Advocate General, and filed a counter-affidavit also. 3. The petitioners were holding posts in a quasi-permanent capacity under the Central Civil Services (Temporary Services) Rules 1949, under the Government of India. In 1945, the Director General of Resettlement and Employment was set up to assist the demobilised services personnel in getting civilian jobs under the administrative control of the Ministry of Labour Government of India, After India attained independence on the 26th January 1950, the said organisation was reorganised on a broad base under a new nomenclature, the National Employment Service. 4. The petitioners joined services of the said organisation, on various dates between 1945 and July 1953, and, they were declared to be in quasi-permanent services under Rule 3 of the Rules. 5. By a notification dated the 10th November 1952, the Government of India set up a committee under the Chairmanship of Mr. B. Shiva Rao, M. P., to examine the future of the organisation or resettlement and employment. Shiva Rao Committee submitted its, report in 1954. The Shiva Rao Committee recommended inter alia that the administrative control of the said exchange should be transferred to the respective State Government aS a result Emploment exchange organisation including the Training Section ceased to be the Central Government organisation and became the State Government organisation with effect from the 1st November, 1956. 6. The Shiva Rao Committee recommended inter alia that the administrative control of the said exchange should be transferred to the respective State Government aS a result Emploment exchange organisation including the Training Section ceased to be the Central Government organisation and became the State Government organisation with effect from the 1st November, 1956. 6. Petitioners 1 to 6 on the 27th July, 1958, and, petitioners 7 to 40 on the 30th July, 1956, received notices, a copy of which is Annexure B to the affidavit, from either of the opposite party, informing them that their services would be terminated with effect from the 1st November, 1956, because their posts would be abolished from that date, and, if they were willing to accept employment under the State Government of Bihar on such terms as the State Government may frame for their employment, and not necessarily identical with their existing terms of employment, they would be employed under the State Government, but in the event of such employment they will not be entitled to the benefits of their previous services under the Government of India. 7. The form of the notice, which was served on each of the forty petitioners, which is Annexure B, is as follows:- - "Notice No. 1. Consequent on the decision of the Government of India to transfer the day to day Administration of Employment Exchange Training Centres to State Government, a number of existing posts of .......... In the resettlement and Employment organisation of the Ministry of Labour will be abolished and the services of a corresponding number of officers will be disposed with. Shri .......... is hereby informed that he is one of the officers whose services will on the abolition of the said posts, be dispensed with and he accordingly is hereby given notice that his services will not be required by the Gomernment of India with effect from ...... ........ 2. The Government of Bihar have agreed to take over the services of Shri ......... and on such transfer of services, benefits, if any, which may have accrued to him by virtue of his service under the Government of India with respect to leave and pension gratuity will be available to him and will be secured by the Government of Bihar. Other terms and conditions of service will be as may be prescribed by the State Government. 3. Shri ......... Other terms and conditions of service will be as may be prescribed by the State Government. 3. Shri ......... is requested to intimate to this Directorate before 20th August, 1956, whether he is willing to accept employment under the Star" te Government in terms of para 2 above, if he accepts such employment, he will not be entitled to terminal benefits of his previous service under the Government of India. 4. If Shri .......... is not willing to serve under the State Government and would elect to have his services dispensed with, he may avail himself of the terminal benefits of his previous service under the Government of India. In that case, he would apply for such benefits forthwith so that the period of notice and the period of the terminal leave admissible to him, if any, may run concurrently, (Regional Director)" 8. The petitioners are aggrieved by the above notices, and have challenged them, and, asked for their quashing under Articles 226 and 227. 9. Before I deal with the merits of the case, I may dispose of the perliminary objection to the maintainability of the present application of the petitioners taken by the learned Advocate General. His objection is that in the absence of the officers of the Government of India in the Ministry of Labour, or in the absence of the Director General of the Resettlement and Employment, who are not parties to the present application, no effective writ, even if the Court considers that a writ should go, can possibly be issued, and, as such, the present application is infructuous. 10. Mr. B. C. Ghose made an application for adding the Attorney General of Ind a, the Director General of Resettlement and Employment , and Deputy Director of Training (Supplies), Government of India, Ministry of Labour, as parties to the application, but we rejected the application for the reasons recorded in our order dated the 22nd November, 1956, as recording to the petitioners in paragraph 5 of their application, they did not know, nor, they had been able to find out the name and designation of the person under whom the petitioners work under the Union of India, or who are responsible for implemention and enforcement of the order conveyed the notice (Annnexure B) against the petitioners. As the petitioners-had not been able to find out the person or persons who should be substituted for the present opposite party, in such circumstances, it was not possible to substitute anybody in the absence of definite information given by the petitioners. 11. Mr. B. C. Ghose, who appeared for the petitioners, contended that this Court was entitled to issue a writ, if, on the merits, it considered it proper, against even unknown persons whoever and wherever they may be preventing such unknown persons form giving effect to the notice issued against them. In support of his contention, he relied on two Supreme Court decisions: (1) Hari Vishnu Kamath V/s. Syed Ahmad Ishaque, (1955) 1 SCR 1104 : ((S) AIR 1955 SC 233 ) (A) and (2) A. Thangal Kunju Musaliar V/s. M. Venkatachalam Potti, (S) AIR 1956 SC 246 : 1956 SCA 259 (B). But, in my opinion, one of these two cases have any application to the present case. 12. In the first case, a question arose if the decision of an Election Tribunal can be removed by certiorari when the tribunal has become functus officio subsequent to the decision. Mr. Ghose relies on the observation of Venkatarama Ayyar, J., at page 1115 (of SCR) : (at P. 240 of AIR), to the following effect: "But if the true scope of certfiorari to quash is that it merely demolishes the offending order, the presence of the offender before the court, though proper, is not necessary for the exercise of the jurisdiction or to render its determination effective." But his Lordship in the earlier part of his judgment also stated that:-- "If it is a question of issuing directions, it is conceivable that there should be in existence a person or authority to whom they could be issued, and when a certiorari other than one to quash-the decision is proposed to be issued, the fact that the tribunal has ceased to exist might operate as a bar to its issue." It was held by a unanimous judgment of the Full Court of seven Judges that the High Courts have power under Article 226 to issue writs of certiorari for quashing the decisions of Election Tribunals, notwithstanding that they become functus officio after pronouncing the decisions. In this case the Election Tribunal was a party to the proceeding, but the only question was whether a writ could issue quashing the decision of the Election Tribunal when it had become functus officio after pronouncing the decision. In the present case, however, the petitioners on their own affidavit do not know who are the persons who should be made parties to the present application, and, as such, the persons against whom the directions could issue commanding them not to give eject to the notice issued are not parties before this Court. 13. The second case also has no application because in that case, it was held by Bhagwati, J., that the jurisdiction under Article 226 is exercised by the High Court in order to protect and safeguard the rights of the citizens, and, wherever the High Court finds that any person within its territories is guilty of doing an act which is not authorised by law, or is violative of the fundamental rights of the citizen, it exercises that jurisdiction in order to vindicate his rights and redress, his grievance; but it was further held that the only conditions to his exercise of that jurisdiction are, firstly that the writs cannot run beyond the territories subject to its jurisdiction, secondly, the person or authority to whom the High Court is empowered to issue such writs must be within those territories, which clearly implies, that they must be amenable to its jurisdiction either by residence or location within those territories. In this case, the authorised official appointed by the Indian Income Investigation Commission was a party to the proceeding, and the question was whether a writ could be issued against him, who, no doubt, was a mere arm of the Commission, or the authorised agent of the Commission, but was acting under the direction of the Commission as its authorised agent, and, as such, no writ should be issued against him, because "the principal who directs, and not the agent would be liable for the same. Their Lordships overruled the contention, and held that such an agent was amenable to the jurisdiction of the High Court, and, the High Court could certainly issue an appropriate writ against him under Article 226, because the principal could, in no event, urge that his agent should be allowed to function for him within the territories in a manner which was not warranted by law or by no jurisdiction of law. In this case, therefore, we find that the agent of the principal was a party to the proceeding, and, it was not a case in which the alleged offender was unknown, and was not a party to the proceeding. 14. The position, therefore, in the first place, is that as the alleged offenders are unknown, and not parties to the present proceeding, no direction could be issued against unknown persons; and, in the second place, according to the petitioners themselves the offenders are officers of the Government of India, who are not amenable to the jurisdiction of the High Court by either residence or location, and, as such, the writ cannot go beyond the territories subject to the jurisdiction of the High Court. In my judgment, therefore, the preliminary objection of the learned Advocate General is correct, and must be accepted, and, on this ground alone, the application must fail. 15. Even on the merits, the petitioners have no case. Mr. In my judgment, therefore, the preliminary objection of the learned Advocate General is correct, and must be accepted, and, on this ground alone, the application must fail. 15. Even on the merits, the petitioners have no case. Mr. Ghose has attacked the notice, Annexure B, issued against the petitioners on three grounds : (1) That the petitioners being quasi-permanent servants of the Government of India, their services could be terminated only under Rule 6 of the Central Civil Services (Temporary Services) : Rules, 1949, and not otherwise; and, therefore, in the absence of a certificate in terms of Rule 6 (ii) of the Rules to the effect that a reduction has, in fact, occurred in the number of posts, the notice are bad in law; (2) Under the notices, the petitioners, who would accept services under the State Government, were sought to be denied the terminal benefits under Rule 9 of their previous services under the Government of India, and, as such, on this ground also, the notices were bad, and (3) That because the petitioners would now be employed in the State Government on a temporary capacity, the notices amounted to reduction in rank of the petitioners from their quasi-permanent ranks to temporary status, and, as such, the notices were accordingly violative of Article 311 of the Constitution. 16. In support of the first contention, Mr. Ghose has relied on Rule 6, which is in these terms: "6. 16. In support of the first contention, Mr. Ghose has relied on Rule 6, which is in these terms: "6. The services of a Government servant in quasi-permanent service shall be liable to termination : (i) in the same circumstances and in the same manner as a Government servant in permanent service or (ii) When the appointed authority concerned has certified that a reduction has occurred in the number of posts available for Government servant not in permanent service : Provided that the service of a Government servant in quasi-permanent service shall not be liable to termination under clause (ii) so long as any post of the same grade and under the same appointing authority as the specified post held by him, continues to be held by a Government servant not in permanent or quasi-permanent service : Provided further that as among Government servants in quasi-permanent service whose specified posts are of the same grade and under the same appointing authority, termination of service consequent on reduction of posts shall ordinarily take place in order of juniority in the list referred to in Rule 7." Rule 6 deals with termination of the service of a Government servant in a quasi-permanent service. A quassi-permanent service has been defined in Rule 2 (b) in these terms: "2. In these rules, unless there is anything repugnant in the subject or context : X X X X (b) "quasi-permanent service" means temporary service commencing from the date on which a declaration issued under Rule 3 takes effect and consisting of period of duty and leave (other than extraordinary leave) after that date." Rule 2 (b) provides for declaration to be issued under Rule 3. Rule 3 is as below : "3. A Government servant shall be deemed to be in quasi-permanent service : (i) If he has been in continuous Government service for more than three years, and (ii) If the appointing authority, being satisfied as to his suitability in respect of age, qualifications, work and character for employment in a quasi-permanent capacity, has issued a declaration to that effect, in accordance with such instructions as the Governor-General may issue from time to time," Mr. Ghose has particularly relied on Rule 6 (ii), and submitted that as the appointing authority has not certified that a reduction has occurred in the number of posts available for Government servants not in permanent service, the notice issued against the petitioners terminating their services with the Union Government, in the absence of a certificate as required by Rule 6 (ii) was, therefore, bad in law. The learned Advocate General, in reply, has submitted that in the notice, Annexure B, to each of the petitioners, it is mentioned that a number of existing posts of a particular class in the Resettlement and Re-employment Organisation of the Ministry of Labour will be abolished, and, the services of a corresponding number of officers will be dispensed with, and, as such, this is a sufficient compliance with Rule 6 (ii). In my judgment, the contention of the learned Advocate General is correct. The rules do not provide any particular form in which the appointing authority concerned has to certify as required by Rule 6 (ii). If, therefore, the appointing authority specifically mentions in the notice that a reduction has occurred in the number of posts available for Government servants not in permanent service, in my opinion, this statement will amount to a certificate under Rule 6 (ii), although the appointing authority concerned does not specifically mention that he is certifying to this effect. What Rule 6 (ii) provides is that the appointing authority should give a notice to the person concerned that a reduction has occurred in the number of posts available for Government servants not in permanent service, and, if such an information or a notice is given, it is a sufficient certificate within the meaning, of Rule 6 (ii). In the present case, there is such a statement in the notice, Annexure B, and, as such, in my opinion, Rule 6 (ii) has not been violated rather it has been sufficiently complied with. The first contention of Mr. Ghose, therefore, must be overruled. 17. There is no substance in the second contention also of Mr. Ghose. The notice (Annexure B) in paras. The first contention of Mr. Ghose, therefore, must be overruled. 17. There is no substance in the second contention also of Mr. Ghose. The notice (Annexure B) in paras. 3 and 4, clearly gives an option to the employees either to accept service under the State Government, or, if they so elect; to have their services with the Government of India dispensed with, in which event the person concerned may avail himself of the terminal benefits of his previous service under the Government of India. It further provides that in that case the person concerned should apply for such benefits forthwith, so that the period of notice and the period of the terminal leave admissible to him, if any, may run concurrently. The opposite party, in their counter-affidavit have stated in paragraph 9 that all the posts (temporary or quasi-permanent) in the organisation called the Regional Directorate of Resettlement and Employment including the Training Centres, which itself was a temporary organisation, had been abolished, and, the Government of India had fixed the 1st November, 1956, as the date on which this organisation will cease to be a Central Government organisation and the posts in the organisation would stand abolished. In view of the abolition of the posts, the services of the petitioners were being terminated with effect from the 1st November, 1956. In such circumstances, the petitioners had a clear option either to avail themselves of their terminal benefits from the Union of India and to have their services terminated with effect from the 1st November, 1956, or, to accept posts under the State Government because of abolition completely of the Central Government organisation and its transference to the State Government, In such circumstances, it cannot be said that the petitioners are being denied their terminal benefits from the Union of India. By the notice, the petitioners have been put to election, and, it is now for them to choose if they would like the terminal benefits or services under the State Government. They cannot obviously have both, and, therefore, it is for the petitioners to decide which offer they would elect, In my opinion, therefore, it is not correct that the petitioners are being denied the benefit of their terminal benefits which are mentioned in Rule 9, which is to the following effect: "9. They cannot obviously have both, and, therefore, it is for the petitioners to decide which offer they would elect, In my opinion, therefore, it is not correct that the petitioners are being denied the benefit of their terminal benefits which are mentioned in Rule 9, which is to the following effect: "9. A Government servant in quasi-permanent service shall, if his service is terminated otherwise than as a disciplinary measure or by resignation, be eligible for - (a) a gratuity at, the rate of half a months pay for each completed year of quasi-permanent service, such gratuity being payable on the basis of the pay admissible to such Government servant in respect of the specified post on the last day of his service and (b) any gratuity to which he is entitled in respect of his service before his appointment to quasi-permanent service". In my judgment, therefore, Rule 9 is quite clear that it will apply to the petitioners, but, in order to get the benefits thereof, they have to decide, and the choice has been given to them in the notice. 18. The third contention of Mr. Ghose is equally unsubstantial. The notice (Annexure B) in para. 3 specifically mentions that the Government of Birar have priced to take over the services of such persons, and, on such transfer of service, benefits if any, which may have accrued to such a person by virtue of his services under the Government of India with respect to leave and pension/gratuity, will be available to him and will be secured by the Government of Bihar, and other terms and conditions of service will be as may be prescribed by the State Government. What, therefore, has happened is that the Central Government organisation having been abolished, with its abolition naturally all the posts under it are also abolished, and the Government of India has as stated in para. 7 of the counter-affidavit by the opposite party, purely as an ex gratia measure, arranged to have such person, whose services were dispensed with by the Government of India, employed by the State Government on terms and conditions of services as prescribed by the State Government. Over and above this, on the petitioners accepting services under the State Government, the benefit with respect to leave and pension/gratuity which may be available to him under the Government of India were made available. Over and above this, on the petitioners accepting services under the State Government, the benefit with respect to leave and pension/gratuity which may be available to him under the Government of India were made available. In such circumstances, it cannot be said that the notices amounted to reduction in rank so as to attract the provisions of Article 311 of the Constitution. The posts under the Government of India having been abolished because of abolition of the organisation itself, the question of retention of the services of the petitioners with the Union of India did not arise. If, the petitioners choose to accept the services under the State Government, they would become State Governments servants on the terms and conditions offered by the State Government. Mr. Ghose admitted that under the Government of India, there were three kinds of services, namely, temporary service, quasi-permanent service and permanent service, but under the State Government there were only two kinds of services, namely, temporary service and permanent service. Under Rule 2 (b), the quasi-permanent service means temporary service, and, as such, the petitioners, if they decide to accept services under the State Government, would also be in temporary service, and in that view also there will be no reduction of their status. In any view of the matter, the notices do not amount to reduction in rank of the petitioners. 19. In my judgment, therefore, the application fails, and, accordingly, I would discharge the rule, and dismiss the application; but, in the circumstances of the case, there will be no order for cost. Ramaswami, J. 20 I agree.