Sukhjinder Singh vs State of Punjab and Another

Jawahar Lal Gupta, J.—Has the petitioner been removed from service by an authority subordinate to the appointing authority ? This is the short question that arises for consideration in this writ petition.

The petitioner was appointed as an Agriculture Inspector in the year 1976. In the year 1979, the Horticulture Wing of the Agriculture Department was constituted into a separate unit. The petitioner was designated as Horticulture Inspector. Vide Notification dated January 22, 1991, all Horticulture Inspectors were re-designated as Horticulture Development Officers. On October 9, 1992, the petitioner was confirmed as a Horticulture Development Officer.

In June 1996, the petitioner was informed that he had fabricated his matriculation certificate and changed his date of birth from October 22, 1943 to October 22, 1947. After consideration of his reply, regular departmental proceedings were initiated, the charge having been proved, the petitioner was given an'' opportunity to represent against the findings and the proposed penalty of removal from service. After consideration of the matter, the Director of Horticulture, Punjab, passed an . order dated January 21, 1998 by which the petitioner was ordered to be removed from service. It is to challenge this order that the present writ petition has been filed.

Mr. Riar, learned counsel for the petitioner, has contended that on re-designation and confirmation, the Director of Horticulture, Punjab, had ceased to be the petitioner''s appointing authority. Consequently, he was not competent to impose the penalty is it so ?

Learned counsel for the petitioner has basically relied on the order of confirmation, a copy of which has been produced as Annexure P-1 with the writ petition. A perusal of this order shows that the petitioner had been confirmed as a Horticulture Development Officer by the Director of Horticulture and not by the State Government. Thus, there was no change in the appointing authority of the petitioner. Learned counsel for the petitioner has contended that the Notification by which the posts have been ordered to be re-designated has been issued by the Government. It is, undoubtedly, so. Since the power to frame rules and to lay down the conditions of service vests in the Government, the rule-making authority had issued the notification. However, no Notification has been produced to show that the appointing authority of the petitioner had been changed from the Director to the Slate Government. The petitioner was admittedly appointed as Inspector by the Director. After re-designation as Horticulture Development Officer, the order of confirmation was passed by the Director. The authority which had substantively appointed the petitioner has passed the impugned order. It committed no error in doing so.

There is another aspect of the matter. The petitioner had admittedly been given a charge sheet by the Director vide communication dated March 13, 1997. A photocopy thereof has been produced by the learned counsel for the petitioner. It is taken on record as Mark ''A''. He had submitted a reply to this communication, a photocopy of which has also been produced by the learned counsel. It does not bear any date. It is taken on record as Mark ''B''. Mr. Riar concedes that the petitioner had not raised any objection regarding the jurisdiction of the Director to initiate proceedings or to serve the charge sheet on him. Learned counsel submits that the petitioners had a right to allow the authorities to commit the mistake and to take advantage thereof at a subsequent stage.

We cannot accept this contention. A citizen does not have the right to sit on the fence. The petitioner took his chance. He never raised any objection. After the enquiry proceedings had been concluded and the charge was proved, he has proceeded to raise the ground of jurisdiction. In the circumstances of the case, we are not inclined to invoke our discretionary jurisdiction under Article 226 of the Constitution of India and to help a person who failed to raise the plea at the relevant time. Still further, nothing has been pointed out to even prima-facie show that the charge against the petitioner was false. That being the position, no ground for interference is made out.

No other point has been raised.

Accordingly, the writ petition is dismissed in limine.