S. Baldev Singh vs The Govt. of Patiala and East Punjab States Union and Others

Chopra, J.—This is an application under Article 226, Constitution of India for an appropriate writ, order or direction quashing orders of the Pepsu Government (Respondent No. 1) whereby S. Baldev''Singh, the Petitioner, was demoted to a flower grade and then peapod under suspension for the period during which an inquiry was to be held against him.

S. Baldev Singh is a displaced person from Balochistan. After the partition of India, he tools up service with the Himachal Pradesh Government and was posted as Excise Assistant there. He was relieved oi the service In the month of January, 1949, and on 20-1-1949, His Highness the Rajpramukh of PEPSU, appointed him Deputy Commissioner, Bhatinda. Since then the Petitioner served as Deputy Commissioner at different headquarters.

On 4-3-1953, the President of India, in exercise of the powers conferred on him by Article 356 of the Constitution, assumed to himself all functions of the Government of PEPSU and all the powers vested in or exercisable by His Highness the Rajpramukh of the State. A Proclamation to that effect was issued the same day and it was ordered that functions of the Government of the State and the powers vested in or exercisable by His Highness the Rajpramukh of the State would, subject to the superintendence, direction and control of the President, be exercised by the Rajpramukh of the State, who would act on the advice of the Adviser appointed by the President in that be- half.

Sardar Baldev Singh was then working as Deputy Commissioner Kohistan District. On 12-3-1953, he was directed to hand over charge to S. Prem Kumar, Assistant Commissioner, Narnaul, and himself to proceed on leave. By Notification No. 1.02 of 24th March 1953, issued by the Home Department, the Petitioner was posted as Additional Assistant Commissioner, Patiala. By a subsequent Notification of the same Department dated 18-6-1953, the Petitioner was placed under suspension with the direction that during the period of suspension he would draw such subsistence allowance as was permitted by rules. Another order of the same date and also made by the Adviser directed that an inquiry into the charges brought against Sardar Baldev Singn would be held by Shri B.R. Tandon, Joint Adviser, PEPSU. The Inquiry Officer in his letter dated 30-6-1953, addressed to the Petitioner informed him that the inquiry was to be held under Article 25 of the P.S.R. Vol. I and required him to submit his explanation to the charges. The inquiry was still proceeding when the present petition embodying the above facts was presented on P: 7-1953.

The case of the Government (Respondent No. 1) is that the substantive appointment of S. Baldev Singh was in Class I, Grade II and that he was subsequently confirmed in that very grade. It was only an officiating arrangement that the Petitioner was posted as Deputy Commissioner a post in Class I Grade I at different places. On purely administrative grounds the Government reverted him to his substantive grade and put him as Assistant Commissioner, Patiala, vide its order dated 24-3-1953. It is, therefore, maintained that the order did not amount to reduction in the rank of the Petitioner.

As regards the order of suspension and inquiry it is stated that there were serious allegations of misconduct and, corruption against the Petitioner. This necessitated a departmental inquiry and it was to facilitate the inquiry that the Petitioner was brought; under suspension.

The main grounds of attack with respect to the first order of 24th March are that the Petitioner, who was a member of the civil service, should have been offered reasonable opportunity of showing cause against the proposed reduction in his rank and that the State Public Service Commission ought to have been consulted before any disciplinary action against the Petitioner was taken. It is/therefore, contended that the order which contravened the mandatory provisions of Articles 311(2): and 320(3) (c) of the Constitution, is illegal and ''inoperative.

Petitioner''s case is that he was substantively, holding the post of Deputy Commissioner and that his original appointment was in Class I Grade I in which that! post, according to the Classification of Service in the State, falls. For this, reliance is placed on Notification No. Ill of the Home Department dated 20-1-1949, which reads as follows:

His Highness the Rajpramukh is pleased to appoint S. Baldev Singh as Deputy Commissioner, Bhatinda District vice S. Dhanna Singh appointed Commissioner.

Copy of this Notification was sent to S. Baldev Singh by the Home Department with "its letter No. F4U85)A/05 of the same date and he was directed to proceed to'' Faridkot and relieve S. Dhanna . Singh. On behalf of the Petitioner, it is urged that no qualification or reservation as regards hips appointment was made in the Notification "and no strings were attached to his; appointment as Deputy Commissioner. The intention of the Government can be judged only from the order that was issued and published, and not -from anything that remained secret with the Government and to which the Petitioner had no access. Since the order did not precisely mention that the Petitioner was only to officiate in that grade or that his posting as Deputy Commissioner was only a temporary phase or an officiating arrangement, he for all intents and purposes could take it, and was justified in accepting it, as a permanent appointment.

The only document that he could look at and rely upon was the Notification and not the confidential records that culminated in the Notification. It has also been pointed out that the preceding Notification No. 110 (of the same date as Notification No. III) which directed S. Dhanna Singh, whom the Petitioner was to relieve, to take over as Commissioner, specifically mentioned that the former was to officiate on the said post. Since no such specification was tagged to his case, the Petitioner was made to understand that he was joining the post on permanent basis.

It may here be mentioned that soon after the formation of this Union, question of integration of services of the eight covenanting States was taken up by the Government and in December on 1948, the system and classification of services pre veiling in other states of the Dominion of India was adopted. It was, therefore, decided to create in the Union a Class I service comparable to the Indian Administrative Service (formerly the Indian Civil Service). The new Service is styled as the Patiala Union Administrative Service Class I and it is to consist of two Grades, namely Grade v. I and Grade II, corresponding to the senior and junior scales of Indian Administrative Service According to this Classification the scale of pay of Grade I is Rs. 600-1200 and that of Grade H, Rs. 250-700 and Deputy Commissioners fall und Grade I and Assistant Commissioners in Grade II By a Notification issued by the Home Department on 11-12-1948, live officers named therein were, appointed substantively members of the Service in Class I, Grade I; nine Ors. , who were substantively placed in Class I, Grade II were to be deemed to have been promoted, in an officiating capacity to Class I, Grade I. The latter class of officers was required to pass such tests as the Government might prescribe for their promotion to and confirmation in Class I, Grade I, and it was further provided that the order, in which their names were arranged in the Notification, indicated the Officers seniority. A list of the Officers who were taken in Class I, Grade II and of those who were to officiate in that Grade, was also given.

The position of the Government Respondent No. 1 in this case is that S. Baldev Singh was substantively appointed in Class I, Grade II and that he, all along his service, was officiating in Grade I and was pouted as Deputy Commissioner in that capacity. The Notification No. Ill relied upon by the Petitioner only speaks of his posting as Deputy Commissioner, Bhatinda, but the conditions and classification of his service were determined and published in a separate and later Notification.

It is maintained that whatever post may have ''been assigned to him, the Petitioner was never confirmed or substantively appointed in Grade I, and that he continued to be in Grade II and was in fact confirmed in that very Grade. In support of this. assertion, S. Ranbir Singh, the Chief Secretary of the Union, has sworn an affidavit and the following documents and orders, copies of which have been placed on the record, are made use of by the Respondents:

Letter dated 14-1-1949, written by Deputy Chief Commissioner, Himachal Pradesh, to S. Baldev Singh the then Excise Assistant Himachal Pradesh, Simla, asking him to hand over charge of the post he was holding and to report him self for duty at Patiala as early as possible. Copy of a demy-official letter of 10-12-1948, from S. Inderjit Singh (Financial Secretary, Patiala) was enclosed with the letter and it was pointed out that the question of the Petitioner''s......permanent absorption in the Union Government would be considered on completion of one year''s satisfactory service.

Memorandum dated 2-2-1949, marked confidential, written by. Secretary to the Cabinet, to the Chief Secretary informing him of the decision taken in a meeting of the Cabinet held on 13-1-1949, on the Home Department memorandum concerning the employment of S. Baldev Singh of Himachal Pradesh in the ser- vice of PEPSU. The decision arrived at by the Cabinet was that S. Baldev Singh be integrated permanently in Class I, Grade II, but he was to officiate in Grade I on probation for one year, where after the question of his confirmation in Grade I would be considered. It was further stated that this decision had been approved by His Highness the Rajpramukh.

Confidential memorandum of the Prime Minister dated 17-1-1949 to the Chief Secretary stat- tag that Sardar Dhanna Singh was, with the approval of His Highness the Rajpramukh, appointed to the post of Commissioner, and in his place the Prime Minister "would like to try S. Baldev Singh of Himachal Pradesh and post him to Bhatinda." The Chief secretary was required to issue necessary orders.

Home Department Notification No. 133 dated 17-2-1949. This pertains to the integration and relative seniority of several Officers in Class I, Grades I and II and crystallizes that S. Baldev Singh was integrated in Patiala Union Administrative Service Class I and was placed at No. 10 (in order of seniority) in the list of the Officers who were substantively appointed in Class I, Grade II but were deemed Do have "been promoted to Grade I in an officiating capacity. A note with respect to the appointment of S. Baldev Singh precisely tells that he would be officiating in Grade I on probation for a period of one year, where after the question of his confirmation would be examined. The Notification further suggests that any Officer aggrieved with the said order could appeal to the Government within 10 days of its publication in the PEPSU Government Gazette. S. Ranbir Singh, the Chief Secretary, in an affidavit filed with the reply on behalf of the Respondent states that no appeal against the said Notification was presented by S. Baldev Singh.

Home Department Notification No. 89 of 20-4-1950, which extended the probationary period of S. Baldev Singh by six months, with effect from 11-10-2006 Bk. (23-1-1950). It may be recalled that S. Baldev Singh joined PEPSU Service on 24-1-1949.

Home Department Notification No. 291 dated 28-11-1950 extended the probationary period of S. Baldev Singh till further orders. .

Home Department Notification No. 214 of 21-5-1951 declared that S. Balded Singh was to be treated as confirmed in P. U. A. S. Class I, Grade II and officiating in Class I, Grade I with effect from the date of his appointment. This Notification cancelled the earlier Notifications of the said department Nos. 89 and 291.

The original letter mentioned at No. 1 must be with the Petitioner himself and Nos. 4 to 7 were duly published in the PEPSU Government Gazette. Nos. 2 and 3 are, of course, such as may not have been in the knowledge of the Petitioner. With respect to them (Nos. 2 & 3), Mr. Sinha, learned Counsel for . the Petitioner, urged that they were confidential records of what happened in the secret chambers of the cabinet or office of the Prime Minister, to which the Petitioner could have no approach. It was argued that since these documents were not brought to the notice of the Petitioner he could not be held to be bound by them, nor could they be used against him in the matter of the terms of his appointment.

To some extent that may be correct, but the things were not allowed to rest on the two confidential records. The decision arrived at by the Cabinet and the order made by the Prime Minister were given effect to and the purport thereof was expressed in Notification No. 133. This was issued by the Home Department on 17-2-1949, and published in the PEPSU Government Gazette of 20-2-1949. The subsequent Notifications by which the period of probation was extended from time to time, must have brought, home his true position to the Petitioner. He should not have lurked in doubt that the Government had decided to substantively appoint him in Grade II of Class I and that he was only to officiate in Grade I of that Class.

Sardar Baldev Singh in his petition makes no reference to any of these orders and Notifications but takes his stand merely on Notification No. 111 dated 20-1-1949. Shri Chetan Dass describes this Notification as one by which S. Baldev Singh was posted as Deputy Commissioner of a particular District, and contends that the conditions of his service and the Class and the Grade (7) Sardar Baldev singh in his petition makes no reference to any of these orders and Notifications but takes his stand merely on Notification No. 11 dated 20-1-1949 Shri Chetan Dass describes this Notification as one by which S. Baldev Singh was posed as Deputy Commissioner of a particular District, and contends that the condition of his service and the Class and the Grade in which he was appointed were still to be decided and that these points were really later on dlspos-_ ed of and duly published. The Petitioner was thus completely aware that while determining the conditions of his appointment, the Government, had substantively placed and appointed him to ''Grade II. Counsel, therefore, urges that the Petitioner was guilty of suppression of important ''and relevant facts and that his prayer with respect to the order of the Government reverting him to his substantive appointment be refused on that ground alone.

The contention appears to carry weight. It cannot be denied that these facts nave direct relevancy to the point in question; and it is also clear that most, if not all of them, were in the know- ledge of the Petitioner. In his letter dated 17-4-l950 addressed to the Chief Secretary, a copy of which has been placed on the record by the Respondent, the Petitioner admitted that he was integrated in the PEPSU Government service Class I, Grade II, and was appointed to officiate in ''Grade I of Class I as Deputy Commissioner, Bhatinda. He also stated in this fetter that since he was a displaced person from Balochistan Provincial Service, as desired by the Government of India, he was to be immediately provided some-where in the PEPSU Government Service "evidently subject to further reconsideration of my position on receipt or production of further particulars of detail regarding my previous service." After cataloguing his qualifications, on the basis of length of service, grade and pay in Balochistan, the Petitioner demanded that his seniority be fin-ally determined.

Another letter, to which my attention has been drawn, was written by the Petitioner on 30-6-1950 to the Finance Secretary PEPSU Government, Patiala. In this letter the Petitioner claimed the usual increment in his pay, the relevant part of it reads as follows:

I was appointed to the Union Service in (P. U. A.S. Class I, Grade II) and posted as Deputy Commissioner (Class I, Grade I) on probation for the year. This period has further been extended for six months. I have, therefore, completed one year in the P. U. A. S. Class I Grade I and am entitled to increment raising my officiating pay from Rs. 600/- to Rs. 650/-, on which I complete one year''s service in Class I, Grade I The existing Rules provide that officiating service quails (qualifies) for increments. There is, therefore, no reason why my service on probation which is by no means different from officiating service, should not count for increment.

Proceedings on a petition under Article 226 of the Constitution by their very nature are of a summary character. A person who applies for a writ of high prerogative and seeks to avail himself of the exceptional remedy, is under an obligation to come to Court with clean hands and to make fully possible disclosure of all relevant and material facts within his knowledge. The Constitution provides a special and speedy remedy for the enforcement of fundamental rights and "for any other purpose". The very nature of the remedy enjoins that those who seek it must approach the Court in perfectly good faith, and place before it all the facts which have a direct bearing on the point in dispute and which the Court ought to know to arrive at a correct decision. Otherwise the Court may be misled to pass orders the consequences of which may be far-reaching and irreparable. What facts, are material in a particular case would necessarily depend upon the nature of the order, direction or writ'' sought.

One of the questions in the present case is, whether the order appointing the Petitioner as an Assistant Commissioner had the effect of reducing him in rank and therefore it was imperative that the Petitioner should have been given reason able opportunity of showing cause against the contemplated action and also that the State Public Service Commission should have been consult ed. What was the substantive appointment of the Petitioner is not only relevant but a material factor for the determination of the question. For, if the Petitioner was only officiating as a Deputy Commissioner and his substantive appointment was the one to which he was reverted, the reversion would not necessarily and under all circum stances amount to a step-back in rank. The case, however, would be just the otherwise if the substantive appointment of the Petitioner was in the higher grade. The Petitioner is thus guilty of deliberately suppressing facts which have been brought to" light by the Respondent and which have a direct bearing on the point at issue. That by itself may disentitle the Petitioner to the relief he claims.

In '', Ganesh Das Ram Gopal Vs. The Government of the State of Uttar Pradesh and Others, it is held that where a party makes an application for a writ under Article 226, Constitution of India and suppresses material facts, it forfeits,its right for a writ. A. similar view was expressed by Bose J. in - Ratan Chandra Nayak Vs. Adhar Biswas, and it was observed that.

a person who makes an ex parte application under Article 226 of the Constitution for the issue of a writ of Mandamus is under an obligation to the Court to make a full disclosure of all material facts within his knowledge, and if he deliberately suppresses material facts then he disentitles himself to ge"t any relief.

A Division Bench of the Simla High Court in ''U.C. Rekhl v. Income Tax Officer'', AIR 1951 Punj. 1 (C) while considering the effect of an incomplete affidavit made the following observations:

Uberrima fides is essential where an application is made for a rule Nisi for a writ of prohibition, and, therefore, if there is a suppression of material facts in the applicant''s affidavit the Court will refuse the writ without going into the merits.

Shri Chetan Dass next urges that at any rate the question of grade in which the Petitioner was substantively appointed is not so very clear and definite; it is after all a disputable point. It depends upon a number of circumstances and interpretation of several documents. The argument is that the writ claimed by the Petitioner depends, upon facts which are disputed and on the legal effect of documents to be proved, and that since the object of Article 226 is not to establish a legal right, the writ should be refused on that ground as well.

The principle that it is incumbent upon the party applying for a writ to show that it has a clear legal right and also that the right to its performance is so clear as not to admit of a reasonable doubt of controversy, appears to be well founded. Seriously disputed questions of fact cannot be satisfactorily- determined in the summary proceedings where the only evidence relied upon consists of pleadings of the parties, their affidavits and certain documents produced by them. Use of the words "shall have power" in Article 226 of the Constitution emphasizes the fact'' that the issue of writs, directions and orders in question is entirely a matter for the discretion of the Court. And one of the grounds against the exercise of this discretion may be that the right claimed by the Petitioner is not capable of being established in summary proceedings under the said Article.

On a careful consideration of whatever matexal that has been produced, I am inclined to think that the substantive appointment of the Petitioner was in Class I, Grade II. At any rate the Petitioner has failed afiirmatively to establish that he was substantively appointed in Class I, Grade I, and has, therefore, failed to prove his indefeasible right, as put forward in the petition. to demand notice of reasonable time under Article 311 (2) and the corresponding.'''' duty of the Respondent to consult the Public Service Commission under Article 320, Constitution of India. I refrain from commenting any more lest it should prejudice the case of either party when and if the question becomes the subject of a regular suit. It is then that the parties will have ample opportunity to adduce all the available evidence oral as well as documentary and get their grievances fully discussed, decided and redressed.

Mr. Sinha, learned Counsel for the Petitioner, in the alternative contends that assuming that the substantive appointment of the Petitioner was in Grade 11, his reversion to that Grade from Grade I amounted to reduction in rank and it could not, therefore be ordered without complying with the mandatory provisions of Articles 311 and 320, Constitution of India. On the ground of natural justice also, it is submitted, a man should not be penalised on the ground of any secret information to contradict which he has no opportunity, and without being heard for what he may have to say on the allegations against him. If the reversion was ordered because of incapacity, ineiliciency or neglect of some duty, counsel urges, the Petitioner should have been given reasonable opportunity of showing that whatever was alleged against him was in fact false and without foundation.

Learned Counsel referred to certain decisions in which it is held that if a person officiating in a higher post is reverted to his original and substantive post by way of penalty it amounts to reduction in rank, because such reversion is apt to stand in his way in securing promotion in the normal course. I am in agreement with the general'' proposition enunciated by the counsel. The principles of natural justice, if not the provisions of any statute law, require that a man shall not be removed from office or otherwise dealt with to his material disadvantage without fair, adequate and sufficient notice being given to him of what is alleged to his detriment, and without granting him an opportunity to meet the accusations leveled against him. The Courts are always extremely zealous in the enforcement of the maxim "AUDI ALTERAM PARTEM" (No man shall be condemned unheard). But there will be no condemnation if the reversion from the officiating to the original and substantive post is effected purely on administrative grounds or when it comes in its normal course. In that case, the reversion may not be due to any supposed fault of the officer and, it may not be by way of penalty or manifestation of disfavour.

Mr. Sinha accepts this significant proviso to the general proposition laid down by him, and frankly concedes that if the reversion of the Petitioner to the post of Assistant Commissioner was only an administrative measure, having nothing to do with anything that the Government might have against him, he could have no objection to the said order. Counsel, however, stresses that the sequence and quick succession in which orders against the Petitioner were,'' passed, strongly go to demonstrate that .the reversion Was the outcome of some sinister design against the Petitioner or that it was the result of some personal disfavour which the Petitioner might have, for no fault of his, incurred. The argument is that the impugned order was by way of punishment or penalty and that in fact it was not made on purely administrative grounds.

In this connexion, the learned Counsel has referred to some of the earlier orders. It is pointed out that once before also the Petitioner was ordered to be suspended. This-happened on 9-9-19jl, when he was acting as Deputy Commissioner, Kohistan. On 27-11-1951 the Government ordered a departmental inquiry. The inquiry, however, resulted in his favour and he was declared to be innocent. By orders of 18th and 19 th January 1952, he was reinstated and appointed as Deputy Commissioner, Bhatinda. The President assumed to himself the functions of the PEPSU Government and dissolved the legislative Assembly of the State on 4-3-1953. Shri P.S. Rau took over charge as Adviser to His Highness the Rajpramukh on 10-3-1953. On 12-3-1953, S. Baldev Singh was ordered to hand over charge to Shri Prem Kumar who was appointed Deputy Commissioner, Kohistan, in his place, and he (S. Baldev Singh) was directed to proceed on leave.

It is maintained that the Petitioner did not stand in need of leave nor he had applied for it. S. Dhanna Singh, Commissioner, was then required to investigate into certain allegations of misconduct against the Petitioner. On 24-3-1953, the Petitioner was reduced in rank and posted as Additional Assistant Commissioner, Patiala. On 17-6-1953 he was suspended and Shri B. R. Tan-don, Joint Adviser, was appointed Inquiry Officer. These facts, it is contended, speak for themselves. They lead to the conclusion that the malignant forces which started combining against the Petitioner in November 1952 ultimately occasioned his decline in March 1953. It has also been averred that s. Prem Kumar, who was appointed in his place, was much junior to the Petitioner and that it was the same gentleman whom he had relieved in June 1952. It is correct that an inference in favour of Petitioner may possibly be drawn from the facts cited above. But the difficulty in his way is that he did not take up this position in the petition. It was never his case that the order of his reversion was mala fide or because of any complaint against him. The stand of the Petitioner was that he was substantively appointed in the higher grade and then was put down to a lower grade. The alternative plea now advanced did not form a part of the petition. The ''bona fide'' of the Government was not challenged in the petition, nor in any of the affidavits. On the other hand the Respondent from the very outset registered the plea that the order of reversion was made on administrative grounds.

Clause 4 of the Respondent''s reply dated 23-7-53 reads as follows:

It is admitted that by virtue of Notification No 79 of 12-3-1953 S. Prem Kumar Assistant . Commissioner, Narnaul was appointed to officiate as Deputy Commissioner Kandaghat in place of the Petitioner. This is for administrative reasons since the Petitioner was junior to a number of Government servants who were holding Grade II posts and were entitled to officiate in Grade I, posts in preference to the Petitioner. Since there way no post in Grade II immediately available for the Petitioner, the Petitioner was placed on leave so that in the meantime his salary could be. adjusted and ser vice continued. Accordingly a provision was, made appointing the Petitioner as Addi. Assistant Commissioner Patiala in Grade II, to which he Is substantively entitled.

The affidavit sworn by S. Ranbir Singh, Chief Secretary, on the same date with respect to the point in question is to the following effect:

I solemnly affirm that since there were Officers in Patiala upon Administrative Service Class "I, Grade II, who were senior to S. Baldev Singh and were yet working on Grade II posts, the Petitioner was appointed in his substantive grade as Additional Assistant Commissioner Patiala, and S. Prem Kumar who was senior to the Petitioner was appointed in his place as "officiating Deputy Commissioner, Kandaghat by Virtue of Notification No. 79 dated 12-3-1953.

I solemnly affirm that on reversion to his substantive grade it was not immediately possible for the Government to fix the Petitioner suitably in Grade II post and consequently it was .further provided in the Notification referred to fin; the preceding para that the Petitioner will remain, on leave so that his pay could be adjusted and service continued.

I solemnly affirm that by virtue of Notification No., 102 dated 24-3-1953 the Petitioner has been placed in his substantive grade, the Class I, Grade II and appointed to a post, which carries the said Grade.

I solemnly affirm that an Officer officiating in a post can be appointed to a post which carries ".his substantive Grade for administrative reasons.

As already remarked, the Petitioner in his petition and also in the affidavit presented with the- petition, did not refer to any of these facts. He, however, in his supplementary affidavit, submitted on 10-11-1953, when the case had already been fixed for arguments, tried to refute the allegations with the following assertion:

I state on solemn affirmation that the position for the Government that other senior officers in Were given a chance to officiate is absolutely incorrect. I solemnly state on affirmation that," the Petitioner is not only senior to Shri Prem Kumar, but also to a number of other Officers working in this Grade.

Here again the Petitioner does not specifically say that the order of reversion was made because of any complaint against him or any supposed fault of his. He simply states that the plea of the Respondent that the order was made for administrative reasons is incorrect and the ground that he gives for it, is that he was senior to S. Prem Kumar who Was posted in his place. In this connation my attention has been drawn to the list of seniority, as given in Home Department Notification No. 80 of 11-12-48. According to this list, Shri Prem Kumar stood at No. 16 of Officers who were integrated in Class I, Grade II and were posted as such. Tin''s seniority list had been drawn before the Petitioner was employed by the PEPSU Government. After his appointment, a revised list of seniority was prepared wherein the Petitioner was placed at No. 10 of the Officers who were substantively placed in Class I, Grade II but were to officiate in Grade I. These lists, it la said, were provisional and a right of appeal was given to the Officers who felt aggrieved on* the question of their seniority. On the basis of these lists, prepared Ave years ago, it cannot be affirmatively said that S. Balaev Singh was in fact senior to S. Prem Kumar.

Directly, touching the point, we have got an-affidavit of the Chief Secretary, already reproduced above, disclosing that S. Prem Kumar was. senior to S. Maldev Singh. The affidavit is of the person who had the means of knowing the correct position and who was in possession of all the relevant records. With the best of his intentions, the Petitioner may honestly be believing that he was senior to S. Prem Kumar, but his belief evidently rested on mere supposition and wishful thinking. Again, the affidavit of the Petitioner that the order was not made on administrative grounds may not be correct for the simple reason that he could not have a full picture of the true state of affairs. It may be based on inferences drawn from certain. facts which, because of natural instinct, he construed in his favour.

On both these points the affidavit of the Chief Secretary, who must have been aware of the actual position, has to be preferred. It is right that the various facts and circumstances on which reliance has been placed, have an important bearing on. the point and may give rise to an inference in favour of the Petitioner. But they at the utmost raise a rebuttable presumption and do not lead to-the irresistible conclusion that the affidavit of the Chief Secretary on the point is incorrect. May be that there were some complaints against the Petitioner, but it cannot positively be said that the reversion was because of them. It may be-only a co-incidence and the order may still have been made on administrative grounds. There is nothing to prove that the complaints, if there were any, had direct connection with the order or that there was a relation of cause and effect between them. The Government may have yet been considering of the action to be taken on the complaints, and the order may have been made on administrative grounds and not as the consequence of the complaints or to penalise the Petitioner on that score. The possibility, of the facts like this, cannot absolutely be eliminated and I do not think there,is enough material to hold that the sworn affidavit of the Chief Secretary must necessarily be incorrect, in my judgment, therefore, the contention must fail.

Objection regarding the non-observance of the provisions of Article 320 (3)(c) must fail on Anr. ground as well. Rules framed under the proviso to the Article afford a complete answer to the question. Rule 4(c)(ii) of Public Service Commission (Limitation of Functions) Regulations 1951 published in the Government Gazette of 18-11 1951 provides that it shall not be necessary to consult the Commission "On any case relating to the discharge or reversion of an officer otherwise than as a penalty". Since I have already held that the reversion in this case is not proved to have been ordered by way of penalty, objection regarding the same having been made without consulting the Public Service Commission is also knocked out.

The other two orders whose legality is challenged were made on 17-6-1953. By one of them S. Baldev Singh was placed under suspension with immediate effect and it was directed'' that he be given subsistence allowance as was permissible under the Rules. The other provided that a departmental inquiry into the charges against the Petitioner framed by the Law Secretary, be held by Mr. Tandon, Joint Adviser.

In the petition; the first order was challenged on the ground that it was made without due notice to the Petitioner under Article 311 and without consulting the Public Service Commission as required by Article 320(3)(c), Constitution of India. The authority of the Tribunal appointed to inquire Into the charges was questioned on a number of grounds which, in view of the point on which the . arguments before me have been confined, need not be, set out. When the case was being heard, Respondent No. 1 was directed to place on record the order by which the Petitioner was suspended and also the one by which the inquiry was insti-tuted. The learned Assistant Advocate General produced the original orders and placed their copies on the record on 13-11-1953.

Since the orders were made by the Adviser on his own authority and not by His Highness the Rajpramukh, the Petitioner that very day presented an application praying to be allowed to question the legality, and binding nature of the orders on that ground as well. It was submitted that the Petitioner had no means of knowing by whom the orders were made for the obvious reason that he had no access to them, and that since the question went to the very root of the case he may be allowed to take up the plea of want of authority even at a late stage. Counsel for the Respondent prayed for a long adjournment to be in a position to get instructions from his client and submit a reply to the application. The case was then adjourned to 27-11-1953 and the Respondent was directed to put in a written reply within a week. The learned Assistant Advocate General in his reply presented on 23-11-1953 did not take exception to the objection being permitted to be raised, nor has anything on that point been said by him during arguments.

The stand that he took in the reply was that the Adviser was competent to deal with the case and make the necesssary orders. It would be useful to reproduce what he had to say on the point. Clause (5) of the reply reads as follows:

As directed by the Hon''ble Court a copy of the decision of the Adviser was placed on the record. The question whether the case was submitted to His Highness the Rajpramukh or not can- not be answered from the record made available to me and information in that behalf is being collected, from the Government. Assuming however, that the case was not submitted to His Highness the Rajpramukh or that his consent was not obtained it is denied that His Highness the Rajpramukh was alone competent to pass the orders directing the departmental inquiry into the misconduct of the Petitioner. The Adviser is also competent to deal with the case of this kind and pass the order directing that departmental inquiry should be held.

In an affidavit sworn by Shri Amar Nath Kashyap, Deputy Secretary Home Department, on 23-11-1953 and presented with the reply, reference is made to the Rules of Executive Business of the Government of PEPSU enforced in the State by the President on 26-9-1953 and it is maintained that the orders were made and issued by the appropriate authority. Curiously enough, the same day, i.e., on 23-11-1953 the Home Department Pile regarding complaint;; against S. Baldev Singh was submitted to His Highness the Rajpramukh and his approval of the orders made by the Adviser was obtained on 24-11-1953. Home Department Notification 37-A of 25-11-195.3 was immediately issued and published in an extraordinary Government Gazette of that date. The Notification reads as follows:

The President is ''hereby pleased to direct that a departmental inquiry shall be held into the charges of misconduct against S. Baldev Singh,. Additional Extra Assistant Commissioner Patiala, and that he shay, remain under suspension pending the departmental inquiry which will be conducted by Shri B.R. Tandon, Joint Adviser to His Highness the Rajpramukh. During the period of suspension S. Baldev Singh, shall receive subsistence allowance as may be-admissible under the Rules.

It was then that a supplementary statement, on behalf of the Respondents, together with an. affidavit of Shri Amar Nath Kashyap was presented to the Office by the Assistant Advocate-General on 26-11-1953. These were ordered to be filed by me when the case came up for hearing, on the following day. The position that the Respondents now take is mentioned in Clauses l and 2 of the supplementary statement, which I reproduce below:

Clause (1) That enquiries made from the Ad-viser reveal that the case regarding, the existence of charges of misconduct against S. Baldev Singh,, the Petitioner, and the action in the nature of departmental inquiry and suspension against him was already brought to the '' notice . of His High ness the Rajpramukh by the Adviser.

Clause (2) That the Home Department Pile H. D. 1(141) Sc-1953, Part I regarding complaints against S. Baldev Singh, the Petitioner containing the charges the statement of case against him and the directions made by the Adviser, of which a copy has already been filed, under the directions of the Hon''ble Court, was submitted to His Highness the Rajpramukh, on 23-11-53. His Highness the Rajpramukh has approved the action in, the nature of departmental inquiry-against S. Baldev Singh and his suspension pending the said inquiry and the appointment of Shri B.R. Tandon, Joint Adviser as Inquiry Officer. The approval was granted by His Highness on 24-11-1953.

The allegations are affirmed by the Deputy Secretary in his affidavit.

The sudden turn that the Respondents have-taken and the unusual haste with which the Government machinery was moved to act are self-evident. Alternative pleas are now being adopted by the Respondents. In the first instance it is contended that the Adviser, who is in sole charge of the administration, was well within his authority and fully competent to make the said orders. In the alternative it is emphasized that now that a valid order has been made by the appropriate-authority, the whole thing is regularized and no-objection to the earlier orders could be allowed to prevail.

Facts relevant to the first contention are these.

Before the President assumed administration of the State to himself, His Highness the Rajpramukh had, in exercise of the powers conferred by Clauses 2 and 3 of Article 166 read with-, Article 238, Constitution of India, made Rules of: Business for the day-to-day working of Government administration. Rule 34 of these Rules gives-list of cases which are necessarily to be submitted; to His Highness the Rajpramukh and the Chief Minister before the issue of orders. Clause (7) of this Rule relates to proposals ''for dismissing, removing or compulsorily retiring of an officer belonging to Class I or Class II Service, and Clause (8) to proposals for the appointment and posting of certain officers; Deputy Commissioners or Collectors are included in the list of these Officers. Rule 35 reads as follows:

Where in any case the Rajpramukh considers that any further action should be taken or that action should be taken otherwise than in ac- cordance with the orders passed by the Minister In charge, the Rajpramukh may require the case to be Raid before the Council of Ministers for consideration, whereupon the case shall be so laid....

Proviso to Article 300 of the Constitution authorizes the Rajpramukh of a state to make Rules, in the case of services and posts in connection with the, affairs of the State, regulating the recruitment, '''' and the conditions of service of persons appointed to such services and posts. His Highness tne Raj-pramukh, in exercise of these powers, on 19-1-1952, framed the PEPSU Civil Services (Classification, Control and Appeal) Rules, 1952. Rules 9, 22 and 24 read together provide that an order of suspension of a member of Class I and II Services . can be made by His Highness the Rajpramukh.

On 4-3-1953 comes the Proclamation by Clause (a) of which the President assumed to himself all functions of the Government of the State of Patiala and East Punjab States Union and also the powers vested in or exercisable by His Highness the Rajpramukh of the State. Clause (c) (i) of the- Proclamation lays down that:

In exercise of the functions and powers assumed to himself by virtue of Clause (a) of this Proclamation, it shouid be lawful for the President to act to such extent, as he thinks fit through the Rajpramukh of the said State.

In pursuance of Sub-clause (i) of Clause (c) of the Proclamation the President was pleased the same day to direct that all the functions of the Government of the State of Patiala and East Punjab States Union and all the powers vested in or exercisable by the liajpramukh of that State under the Constitution or under any law in force in that State, which have been assumed by the President by virtue of Clause (a) of the said Proclamation shall subject to the superintendence, direction and control of the President be exercised by the Rajpramukh of the Said State who will act on the advice of the Adviser appointed by the President in this behalf.

According to this order, the powers that were vested in or were exercisable by His Highness the Raj pramukh under the laws in force in the State, are still to be exercised by him, but with the following two conditions.

(1) That he will exercise the powers subject to the superintendence, direction and control of the President.

(2) That ho will act on the advice of the Adviser.

The Order thus makes if abundantly clear that pine powers which under the prevalent laws of the State were to be exercised by His Highness the Rajpramukh still vest in him; the only difference being that the powers are to be exercised as la delegate of the President and with the advice of the Adviser. The order docs not authorize the (Adviser to exercise the powers which under any Of the laws of the State were to be exercised by the Rajpramukh. The functions of the Adviser are confined ''to render advice and the Rajpramukh is required to act on that advice. The advice is to be one of the links in the chain of the working of administration, but it does not constitute the chain itself.

Here I am not concerned with the situation that may arise if in any particular case the Rajpramukh does not agree with the advice made by the Adviser, but the Order does not leave any doubt that matters which lay in the exclusive power of the Rajpramukh, are still to be dealt by him. Unless any sub-delegation under the Order was possible the Rajpramukh could not further delegate his powers to the Adviser. It is not even the case of the Respondent that any sub-delegation was made, nor has my attention been drawn to any subsequent order of the President whereby the powers to be exercised by him (President) in place of the Rajpramukh, were delegated to the Adviser.

Rules of Executive Business of the Government of PEPSU were for the first time framed by the President on 26-9-1953 and these Rules were directed to be deemed to have come into force on 5-3-1953. Rule (11) which is relevant to the point in question and on which reliance is placed reads as follows:

Except as otherwise provided by any Rule or Order, cases shall ordinarily be disposed of by or under the authority of the Adviser who may, by means of standing orders, give such directions as he thinks fit for the disposal of cases.

The Rule expressly creates an exception in favour, and saves the provisions of any earlier Rule or Order, and this evidently means that the cases which under the existing Rules and Orders were required to be disposed of by any particular authority were still to be referred to him for disposal .. and necessary orders. The appropriate authority to deal with them remains the same as before. On 27-11-1953, i.e., 3 days after S. Baldev Singh''s case was submitted to His Highness the Rajpramukh and the order Seen obtained from him, an amendment to these Rules was made and Rule 6(a) added. Rule 6(a) gives list of cases which are to be submitted to the Rajpramukh through the Adviser before issue of orders.

Shri Chetan Dass contends that Rules of Business framed by the Rajpramukh in exercise of the powers conferred on him by Clauses 2 and 3 of Article 166 of the Constitution and which were in force on 4-3-1953, ceased "to exist and have any force the day when the President assumed administration of the State to himself. The argument is that since the Proclamation of 4-3-1953 provides that the operation of the provisions of Clause (3) of Article 166 of the Constitution in relation to the State shall remain suspended, the rules that had already been framed and were in force in the -State, should be taken to have been automatically suspended.

On behalf of the Petitioner it is urged that no new Rules of Business were framed by the President and those framed on 26-9-53 - sometime . after the orders in question were made - could not be given retrospective effect as they were merely executive and procedural in nature and those Rules, therefore, could not validate the orders that had already been made and completed.

Besides, Mr. Sinha assails the new Rules of Executive Business on a number of grounds. He contends that Rule 11 of these Rules is ultra virus the powers of the President, and also the Proclamation made by him. The argument is that once the President, by the Proclamation and the Order made there under, had vested certain powers in the Rajpramukh as his delegatee, he could not without amending the Proclamation itself divest him of those powers by merely framing Rules whose effect was to make the Rajpramukn a non-entity in the administrative affairs of the State. The President could make incidental and consequential provisions for giving effect to the objects of the Proclamation, but, the counsel stresses, the terms of the Proclamation could not be varied except by a fresh and subsequent Proclamation, These are, however, matters which need not be gone into in the present case. Nor am I called upon to decide the effect of ''the Proclamation and suspension of the rule-making powers of the Rajpramukh under Article 166(3), on the rules which were already framed in exercise of those powers. The present is a case which primarily relates to the Classification, control and conditions of service of a State employee and for that we have got separate and specific Rules framed under Article 309 of the Constitution. Operation of the provisions of this Article of the Constitution was not suspended by the Proclamation and it is the case of the Respondents themselves that those Rules are, still in force, as the inquiry against the Petitioner is to be held Under Rule 25 of those Rules. Rule 22 of those Rules enumerates penalties that may, for good and sufficient reasons and as provided by the Rules, be imposed upon members of the Services comprised in any of the classes specified in Rule 9. Suspension is one of the penalties mentioned in Sub-clause (v) of the Rule. Rule 9 provides that the Public Services of the Patiala and East Punjab States Union shall be classified as Patiala Union Service Classes (I) to (V).

Rule 24 specifies the authority by which the penalties mentioned in Rule 22 can be imposed. According to Clause(1) of Rule 24, His Highness the Rajpramukh can impose any of the penalties on members of Class 1 Service and any of the penalties mentioned in Clauses (IV) to. (VII) of Rule 22 on members of Class 11 Service. The Rule clearly signifies that an order of suspension of any member of Class I and Class II Services can be made by His Higdness the Rajpramukh. Rest of Clauses of Rule 24 specify the authority by which the other penalties contained in Rule 22 may be imposed on members of other Services, but with that we are not concerned. Obviously, the combined effect of these provisions is that a member of Class I Service of the State can be suspended by His Highness the Rajpramukh. The . Petitioner admittedly is a member of this class of Service and he, therefore, could be suspended by an order made by His Highness the Rajpramukh. It has to be kept in view that these Rules were in force when the order of suspension of-the Petitioner was made by the Adviser on 17-6-1953. As already observed, some Rules of Executive Business of the Government of PEPSU were framed on 26-9-1953 and they were, directed to be deemed to have come in force on 5-3-1953. Rule 11 of the present Rules, on which reliance is placed by the Respondent expressly saves the operation of the Rules which were already in force. It lays down that ''except as otherwise provided by any Rule or Order'' cases shall ordinarily be disposed of by or under the authority of the Adviser.

Because of the exception made in this Rule, the Adviser could not himself deal with the case of suspension of a Class I Officer or make an order of suspension which under the existing Rules could be dealt with or made by His Highness the Rajpramukh. Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all; other methods of performance must be deemed to have been necessarily forbidden. The amendment of the Rules brought in by adding Rule 6A, on 26-11-1953, also does not create any difference.

Rule 6A, gives a list of cases which are to be submitted to the Rajpramukh through the Adviser before issue of orders. It is correct that an order of the kind in context Is not included in this list, but the Rule does not expressly repeal or put an end to the Rules which were already in existence on the point. The cases now required to be submitted to the Rajpramukh may be in addition to those which were required to be so submitted Under Rule 24 of the PEFSU Civil Services (Classification, Control and Appeal) Rules, 1952. The new Rule is in no way repugnant to or in contradiction of the earlier Rule 24. It is a well recognized principle of interpretation of Statutes that an enactment or rule having the force of law cannot be held to be repealed by implication by a later enactment or statutory rule unless the provisions of the earlier enactment or rule are plainly repugnant to those of the subsequent enactment or rule, and the entire subject-matter of the first is taken away by the subsequent. Repeal by implication is the consequence of contradictory or inconsistent legislation and should not be imputed to legislation or rule-making authority unless one is driven to do so. Even when there is repeal or amendment of an Act or Rule by necessary implication, the repeal need not extend to the whole of it, and the provisions of the earlier enactment may survive the repeal or amendment. It is also significant that Rule 6A was in fact added after an order had already been obtained from the Rajpramukh on 24-11-1953.

The result, therefore, is that the case regarding the suspension of the Petitioner could not be finally dealt with by the Adviser nor could the final order of suspension be made by him on his own authority. The papers with his advice were to be submitted to the Rajpramukh and final orders obtained from him as required by the Proclamation and Order of the President of 4-3-1953. This disposes of the contention of Shri Chetan Dass that the Adviser was also competent to deal with the case and pass the necessary orders.

Shri Chetan Dass next contends that the proposal of the Government for departmental inquiry against the Petitioner and his suspension had already been brought to the notice of His Highness the Rajpramukh, and that he did not disapprove the action.,In this connection he relies on an affidavit of Shri Amar Nath Kashyap dated 25-1-53 filed with the supplementary statement on behalf of the Respondent. Clause (3) of this affidavit reads as follows:

I solemnly affirm that previous to 23-11-53 the Adviser had already spoken about the case against S. Baldev Singh, the Petitioner, to His Highness the Rajpramukh and that His Highness the Rajpramukh did not at any time before the said date disapprove the action in the nature of the departmental inquiry and suspension taken against the Petitioner.

In the earlier reply on behalf of the Respondents and. the affidavit of the same gentleman, dated 23-11-1953, no mention of anything of '' the kind that had transpired, was made and the stand taken was that the Adviser himself was competent to make the orders. And then again, the revised and supplementary affidavit relates to a matter of which the deponent may not have any personal knowledge.

Reserving my comments on the force and value of this sort of affidavit I cannot help thinking that it does not carry the Respondents'' case any further. Anything that is not disapproved can not be deemed to have been approved. In other words, absence of disapproval close not amount to approval of an order which under the Rules he was required to give and make in this case-His Highness the Rajpramukh may be aware of a proposal to start certain proceedings but any Inaction or want of show of disapproval on his ''part does not tantamount to his approval, nor does it mean that the proceedings were initiated by him or under his orders. The order made by the Adviser cannot, therefore, be justified and legalised on that ground. It was perhaps to justify the action that had already been taken that the case was subsequently submitted to him and ''''approval of the Rajpramukh obtained on 24-11-. 1953.

A faint attempt was made by Shri Chetan Dass to exclude the application of R. 2a of PEPSU Civil Service (Classification, Control and Appeal) Rules,1952 on the ground that the Petitioner was not f suspended by way of penalty, but simply to fact before inquiry that was to be held against him. . It is "correct that Rule 22 defines various panatelas" that can be imposed upon members of the Government Service, and suspension is one of them. The learned Counsel has, however, not been able to show that suspension of a Government employee for any particular reason or purpose and under certain circumstances does not amount to penalty s or that an order of suspension for those reasons and under those circumstances could under the Rules, be made by any authority lower than His '' Highness the Rajpramukh. Nor has the counsel been able to convince me that in this case the suspension was not by way of penalty but exclusively with a view to facilitate the inquiry.

Next, it is urged that the Court should not hold last to the situation and circumstances as they existed on the day the petition was presented. Things that have subsequently happened and the order that has now been made should be taken into consideration while deciding the petition and granting relief to the Petitioner. The argument is that since a valid order of suspension and directing an inquiry has now been made by the proper authority, no useful purpose would be served by quashing the previous orders even if they be declared to be illegal and ineffective. It is further pointed out that there are a number of serious charges against the Petitioner which have to be ... ''inquired into; the formal defect in the order on "f the ground of its having not been made, by the proper authority is now remedied by a subsequent order; evidence with respect to only one of the charges has so far been recorded and the remain-",In charges are yet to be gone into and the same ;Inquire _pettier is to hold the inquiry because of the new-order. Under the circumstances, it is urged, the Petitioner does not stand to gain even if earlier orders are set aside.

Three cases - one decided by the Federal Court Anr. by the Allahabad High Court and the third by the Supreme Court - have been cited by the counsel in support of his contention. They are all cases of preventive detention and the principle enunciated is that before the Court in a habeas corpus petition orders release of a person, it has to see if there is any valid order for his .detention. In - AIR 1945 18 (Privy Council) Spens C. J. pointed out the .distinction between a habeas corpus petition and ''proceedings of a civil nature, and observed that there was no analogy between the two as in the ''latter type of proceedings the rights of parties as they existed on the date of the institution of the proceedings have ordinarily to be ascertained. It was, therefore, held that.

if at any time before the Court directs the release of the detente, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that on some prior stage there was no valid cause for detention.

It was further pointed out that in cases of habeas corpus.

the question is not whether the later order validates the earlier detention but whether in face of the later valid order the Court can direct release of the Petitioner.

In - ''Mool Chand v. Emperor'' AIR 194a All 281 (E) an application u/s 491, Code of Criminal Procedure, it was suggested that the view of their Lordships of the federal Court was open to doubt in view of certain remarks made by the Judicial Committee in-''Emperor v. Vimlabai Deshpande'' AIR 1948 PC 123 (F). In that case, however, their Lordships were referring to an order passed by the Government of the Central . Provinces after the final hearing in the Nagpur High Court. Wanchoo J., therefore, followed the Federal Court decision and after reproducing the above quoted observations of their Lordships, proceeded to see whether on the date on which he was hearing the application, there was a valid order for detention of the applicants.

The Federal Court judgment was again under discussion,1 in the light of. the provisions of Article 22 of the. Constitution and K 13 Preventive Detention Act, before their- Lordships of the Supreme Court in - Naranjan Singh Nathawan Vs. The State of Punjab, Patanjali Sastri C.J. referred to the distinction between civil proceedings and proceedings in the nature of habeas corpus and held that in the latter type of cases the Court had only to see to the legality or otherwise of the detention at the time of the return, and not with reference to the date of the institution of the proceedings.

The rule in the present case was issued on the footing that the orders made by the Adviser were illegal and inoperative according to the Laws in force on the day the petition was presented.

The orders were sought to be justified by the Respondents under those Laws and on facts as they stood on that day. The Court, therefore, has to pronounce upon the validity of the orders irrespective of any orders of Executive Rules, that were subsequently made or introduced. The decision, if it goes in favour of the Petitioner, may have the effect of giving him a valuable right under the civil Law, and it would not be fair and advisable to deprive him of that right.

To say that no rights have accrued to the Petitioner or that no difference will be made if the Petitioner is regarded as suspended from the date of the new and subsequent order, would not be correct. The Petitioner remained under suspension because of an illegal order for more than 5 months. He was not entitled to draw his usual pay for this period and was Only to be paid some subsistence allowance. Proceedings have been going on in the inquiry that was wrongly instituted and evidence with respect to one of the charges has already been recorded by the Inquiry Officer. The order contained in the Notification of 25-11-1953 uses future tense in every one of its directions. It does not purport to, nor can it validate what had already been ordered, done or completed. It directs a departmental inquiry to be held into the charges of misconduct against S. Baldev Singh and appoints Shri B.R. Tandon, Joint Adviser, as the Inquiry Officer. The order further directs that S. Baldev Singh shall remain under suspension during this period.

The order as is clear from the phraseology used is to take effect from the date when it was made. It does not provide for what had already happened and what had already been done under the previous orders. I would pronounce no opinion, nor am I called upon to do so, on the validity or force of this new order. That is a matter which may form the subject of civil proceedings in one wanner or the other, He ''result of which I cannot anticipate. The material date in the present case is the one on which the proceedings were instituted or when the rule issued by the, Court was returnable. Anything'' subsequently done by a party to improve upon its position is to be left out of consideration.

In - Ram Narayan Singh Vs. The State of Delhi and Others, their Lordships of the Supreme Court did not take notice of the documents produced after the date fixed for the return of the rule issued by the Court. The principle applies with much greater force to proceedings of a civil nature, in which the parties cannot ordinarily be allowed to-change their pleas and improve upon their position ''pendente lite''. Any unilateral action on their part during the proceedings should riot be permitted to jeopardize the rights that eave already accrued to the other party. The Court is culled upon to decide the rights of the parties upon facts and circumstances. as they stood on the date when the proceedings were instituted. In my judgment, therefore, the subsequent order in this case cannot be taken into consideration and allowed to legalise the previous orders or validate the wrong done to the Petitioner.,'';"

Shri Chetah Dass lastly urged that in view of the peculiar facts of this case and particularly because of what had subsequently happened no writ or declaration should be issued or made, and that the discretionary relief should not be granted as it would serve no material purpose to the . Petitioner. Counsel has also stressed that the Government is free to make a valid order, as actually it had already done, and to proceed with, the inquiry, and that any order passed by the Court under the circumstances would be of no avail. I am in agreement with the counsel that the relief under Article. 22G of the Constitution Is discretionary and that it is not to be lightly exercised, nor is it to be exercised arbitrarily, capriciously or indiscriminately. But no hard and fast rule can be laid down as to how and when it should be exercised. It is only in exceptional cases that the extremely wide powers conferred on the High Court by the use of the words "for any other purpose" in the Article are to be exercised such as for instance when there has-been a clear violation of Statutory Law, when principles of natural justice have been violated, or where refusal to grant the relief would result in great hardship. An application may be refused if the writ or direction applied for would be inoperative or would not be of any particular benefit to the applicant. The present, however, is a case where the orders were without authority and in clear violation of the Rules which had the force of Law. It is not a case where any order made by this Court will, not improve matters, or will be of no avail to the Petitioner.

As already observed, he has been under suspension and the inquiry against him is going on for several months, even though there was no valid and legal order for the same. The remedy that he seeks cannot be denied to him simply because the Respondent can make, and has in fact made, an order which may be free from any defect.

The only authority cited by Shri Chetan Dass in this connection has no application to the present case. It is a Division Bench decision of the Saurashtra High Court in - ''Bhojraj v. Chief Secretary Govt, Saurashtra, Rajkof AIR 1952 Sau 40 (I). The Petitioner in that case was appointed on temporary basis and his services were terminable at one month''s notice on either side. He was ordered to be suspended pending some inquiry against him, and eventually his services were terminated with immediate effect. These orders were made by the Collector. The Petitioner preferred an appeal to the Government'' and also submitted a memorial to Ralpramukh. But on receiving no response he preferred a petition for writ directing the Government to reinstate him in service. -One of the grounds challenging the order was that it contravened the provisions of Article 311 (2) of the Constitution, and the objection was decided in favour of the Petitioner. The petition, however, was rejected on the ground that even if a writ was issued against the Government'' the Petitioner was not in a position to be benefited thereby, as it could be rendered ineffective immediately by the Government by exercising their powers under the conditions of the Petitioner''s employment. The Petitioner had already obtained service in Anr. State and, therefore, even if the Government were willing to reinstate him it was not possible for him to rejoin the Saurashtra State Service. Moreover, the Petitioner had no legal right to continue in service because the Government could discharge him at any time without assigning any reason by paying one month''s - salary.

Influenced by these facts Bose J. concluded his order dismissing the petition with the following observations:

After a careful consideration of the case, we have come to the conclusion that it is not necessary to give any declaration. It will do no substantial good to the Petitioner. He has already been employed elsewhere, and presumably his removal from the Saurashtra State Service has caused him no prejudice. If the Petitioner wants to have the satisfaction of an empty declaration which is not to be of any utility to him, it is open to him to get it by means of a regular suit. We have already expressed our opinion that the order terminating his services is in contravention of the terms of Article 311 (2) and invalid. The Petitioner should rest satisfied with that.

No comments are required to show that the facts of the present case are entirely different.

It is next urged that the proceedings under Article 226 of the Constitution are not akin to a declaratory suit and therefore a declaration simplicity cannot be issued in this petition. Some authorities have also been cited in support of the contention, but I fail to understand how they have any relevancy to the present case. Here the Petitioner does not seek a mere declaration of his rights but prays for quashing certain orders on the ground of their having been made without authority and their being illegal and inoperative.

It may be correct that a writ of Mandamus cannot be issued to the Government to keep the Petitioner in employment, since every person who is a member of a Civil Service of a State or holds any civil post under a State holds office during the pleasure of the Governor or, as the case may be, the Rajpramukh of the State. It cannot, however, be denied that the employee is entitled to demand that his services can only be dispensed with in strict compliance with the prevalent laws and by orders of the authority competent to do it. An order dispensing with his services, if it contravenes the mandatory provisions of Law or is made by an authority not competent to make it, is surely liable to be declared invalid and. inoperative and hence quashed.

In the result the petition is accepted to the extent that the orders dated 17-6-1953 placing the Petitioner under suspension and directing an inquiry against him ere declared to be illegal and inoperative and therefore quashed, and the Respondents are directed to forbear from giving effect to the orders. Since the petition only partly succeeds, I leave the parties to bear their own costs.