Smt. Prem Kumari vs The State of Himachal Pradesh etc.

Chet Ram Thakur, J.—This case raises the following points for consideration:

(1) Whether the order Annexure ''D'', dated 20th December, 1973, passed by Shri S. R. Mahantan purporting to be the Director of Consolidation of Holdings, Himachal Pradesh is a valid and legal order?

(2) If the order Annexure ''D'' is not a valid order whether the acts and orders of Shri''S. R. Mahantan passed after the 9th December on which date he attained the age of superannuation could be validated by the notification, dated 27th April, 1974, issued by the Respondents ?

The Petitioner was appointed as a contingent paid typist clerk by an order, dated 31st January, 1973, in the office of the Respondent No. 2 with effect from 1st February, 1973. Thereafter her-appointment was extended from time to time till 18th May, 1973. Again by another order she was appointed as a contingent paid'' typ s; clerk till 28th February, 1974. Her appointment was, however, terminated before the expiry of the period. Again she was appointed as a Daftri in the office of the Respondent No. 2 in the pay scale of Rs. 75-3-90-3-105 with usual allowances with effect from 1st June, 1973. She joined the post and had been working there continuously till 20th December, 1973, when the impugned order Annexure ''D'' was passed abolishing the post held by her. The Petitioner avers that Shri S. R. Mahantan who purported to exercise the powers of the Director of Consolidation on the date when he passed the order had attained the age of superannuation on the 9th December, 1973, and he stood retired from the Government service and as such he could not exercise the powers of the Director of Consolidation of Holdings on the 20th December, 1973. Further the -appointment of the Petitioner could not be terminated before the expiry of the period, i.e.., before 28th of February, 1974. It was further averred that the order passed by the Respondent No. 1 in April, 1974, could not confer powers on the Respondent No. .3 with a retrospective effect and, therefore, the order passed by Shri S. R. Mahantan must be treated as non-est and must be struck down.

There is no dispute in so far as the acts are concerned. The only thing is that the Petitioner was a contingent paid employee and her services could be terminated at any time without serving any notice. It is not disputed that Shri Mahantan had attained the age of superannuation as alleged by the Petitioner and it is also not denied that no notification had been issued on the 9th of December, 1973, grandng extension of service to Shri Mahantan beyond the date of his superannuation so as to say he continued to function as the Director of Consolidation of Holdings under a legal authority. It is also not disputed that on the date when Shri Mahantan passed this order Annexure ''D'', i.e. on the 20th December, 1973, there was no such order granting him-extension, and it is also admitted that the Respondent No. 1 passed an order on the 27th April, 1974, granting ex-post-facto sanction to the re-employment of Shri Mahantan in the post of the Director of Consolidation of Holdings with effect from the 10th December, 1973 to 21st January, 1974. Point No. 1:

Shri S. R. Mahantan attained the age of superannuation on the 9th of December, 1973, and to that effect intimation had been given to him by the Respondent No. 1 vide Annexure ''E'', dated 22nd May, 1973. It appears that on the 18th January, 1974, Shri S. R. Mahantan had been informed vide Annexure "R/C" by the Respondent No. 1 that it had been decided by the Himachal Pradesh Government not to grant any further re-employment in service to him and that he should relinquish charge, of the post immediately. But there is no order of re-employment placed by the Respondent No. 1 to show if he had Actually been re-employed after the 9th December, 1973, or just before the impugned order Annexure ''D'', dated.20th December, 1973, was passed. Under F.R. 56, every Government servant shall retire on the day he attains the age of fifty-eight years. Therefore, as soon as thel Government servant attains the age of 58 years he automatically stands retired without any formal order being made by the Government unless the Government may grant extension of service as contemplated under Clause (d) of F.R. 56. Then there must be order in that behalf if he is granted an extension otherwise there is no need to pass any formal order of retirement.:In this case: Shri S.R. Mahantan had been intimated that he shall attain his age of superannuation on the 9th December, 1973, by an order, dated 22nd May, ''1973 (Annexure E). Therefore, after the 9th unless there was a specific order granting him extension or re-employment and which the Respondents have failed to show Shri S. R. Mahantan stood retired and thereafter he had no locus standi to exercise the powers of a Director of Consolidation of Land Holdings. If that is so the order is without jurisdiction, no matter she was a contingent paid and she had no right to the; post. But Shri Mahantan also who had ceased to be the Director of Consolidation and was not clothed with the legal authority on this date could not pass any such order in respect of any employee of the department. Therefore, this point No. 1 is decided against the Respondents.

Point No. 2:

The Respondents passed this order Annexure ''R-A'', dated 27th April, 1974, granting ex-post-facto sanction to the re-employment of Shri S. R. Mahantan with effect from 10th December, 1973 to 21st January, 1974.

In this behalf I may quote Ajit Singh v. The State of Punjab and Anr. (S.C.) 1967 P.L.R. 271 wherein in a similar situation it has been held that before a person can start acting as a Consolidation Officer he must be appointed as such. Before he is appointed he has no authority to exercise any of the functions of a Consolidation Officer. What he does purporting to act as Consolidation Officer has no binding force on the owners and other persons affected in the estate. The Government cannot by appointing him retrospectively clothe him with authority retrospectively. A similar question came up for considertion before their Lordships of the Supreme Court in Income Tax Officer, Alleppey Vs. M.C. Ponnoose and Others, and it was held that "by issuing notification in exercise of powers conferred u/s 2 (44) (ii), the State Government cannot invest the Tehsildar with the powers of a Tax Recovery Officer with effect from a date prior to the date of the notification i.e., retroactively or retrospectively. Consequently, attachment of shares belonging to Assessee in order to recover arrears, by the Tahsildar, subsequent to 1st April, 1962, i.e., commencement of the Act of 1961 but prior to the date of notification empowering him as a Tax Recovery Officer is invalid."

In the face of these authorities it will not be necessary for me to dilate on the point. The necessary corollary that follows is that this order clothing Shri S. R. Mahantan with the powers of a Director of Consolidation is not a legislative act, rather it is an executive act and no such powers can be exercised by the Government in such matters so as to validate the acts and orders passed by the authority, who at that point of time was not competent to exercise all the powers. The Petitioner had retired on the 9th December, 1973. There was no order passed on and the order was passed only in April, 1974, and this order could not have retrospective effect and it could not, therefore, validate any act or order passed by Shri Mahantan including the impugned order in this writ petition. Therefore, this point No. 2 also is decided against the Respondents.

It is an admitted fact that the Government has got every power to determine the relationship of master and servant at any time and in this case also the Petitioner being a contingent paid her services could be dispensed with or the post she was holding could be abolished by the employer, but that could be done only under the orders of a person who was legally clothed with the authority on that particular point of time and not by a person who had ceased to have that authority becauseof his having attained the age of superannuation and was holding the public office only as an usurper.

Therefore, the result is that this petition succeeds and the order is hereby quashed resulting in all the consequential benefits arising to her because of the quashing of the illegal order. However, I pass no order as to costs.