Gian Singh vs The State Of Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 11 September 1961

Coram: J.C. Shah, K. Subba Rao, M. Hidayatullah, P.B. Gajendragadkar, Raghubar Dayal

In the matter titled Gian Singh versus The State of Punjab, the case was listed on 11 September 1961 before the Supreme Court of India. The judgment was delivered by a Bench consisting of Justices J. C. Shah, K. Subba Rao, M. Hidayatullah, P. B. Gajendragadkar and Raghubar Dayal. The petitioner, Sardar Gian Singh – hereinafter referred to as the appellant – entered the Provincial Revenue Service of Punjab in 1927 when he was appointed as a Naib Tehsildar. He received confirmation in that rank in 1939 and was subsequently promoted in 1946 to the position of officiating Tehsildar. On 22 September 1947 he was assigned the duties of Tehsildar at Hansi in the district of Hissar, and thereafter he occupied the office of Tehsildar at various other locations. On 20 August 1952 the Financial Commissioner of Punjab served upon the appellant a charge sheet containing eleven separate counts alleging misappropriation, misconduct, irregularities and dereliction of duty. In accordance with the procedure prescribed, the Deputy Commissioner of Hissar was appointed as the officer to conduct a departmental enquiry into those charges. After the enquiry, on 28 August 1953 the appellant received a notice requiring him to show cause why, on the basis of the findings recorded by the enquiry officer, he should not be dismissed from service. The appellant filed his explanation in response to that notice. Subsequently, the Financial Commissioner issued an order dated 26 October 1953 dismissing the appellant from his position. The appellant challenged that order by filing an appeal, which was dismissed, and an application to the Government of Punjab seeking revision of the appellate authority’s decision also failed. Consequently, the appellant instituted a petition under Article 226 of the Constitution before the High Court of Punjab, seeking a declaration that the dismissal order be set aside. In that petition he argued, inter alia, that he had not been afforded a reasonable opportunity to rebut the allegations either before the enquiry officer or before the Financial Commissioner, and that the Financial Commissioner lacked the competence to pass a dismissal order. Justice Bishan Narain, who heard the petition, rejected the appellant’s first contention regarding the opportunity to be heard. However, he held that the Financial Commissioner no longer possessed the authority to make rules governing the appointment and dismissal of Tehsildars because the Punjab Land Revenue Act, 1887 had been amended by the Government of India (Adaptation of Indian Laws) Order, 1937. Accordingly, the authority derived by the Financial Commissioner under those rules to dismiss Tehsildars was also abolished, rendering the order dated 26 October 1953 void and ineffective. The appellant then appealed this decision under clause 10 of the Letters Patent. A Division Bench of the High Court reversed Justice Bishan Narain’s order, holding that, by virtue of clauses 9 and 10 of the Government of India (Adaptation of Indian Laws) Order, 1937, the rules framed under the Punjab Land Revenue Act, 1887 continued to remain in force even after the amendment, and that the Financial Commissioner therefore retained the power to dismiss the appellant from service. The High Court consequently dismissed the appellant’s petition, a decision which the appellant now challenges before this Court, having obtained certificates of fitness in accordance with Article 133 of the Constitution.

In the present matter the appellant was removed from the service of the State, and the High Court consequently rejected the appellant’s petition and dismissed it without granting any relief. The appellant then filed an appeal before this Court, seeking judicial review of the High Court’s order and relying upon certificates of fitness that had been submitted under Article 133 of the Constitution, which governs the Supreme Court’s jurisdiction over constitutional questions. Section 9 of the Punjab Land Revenue Act, 1887, as originally enacted, contained the explicit provision that “The Provincial Government shall fix the number of Tehsildars and Naib Tehsildars to be appointed, and the Financial Commissioner may make rules for their appointment and dismissal.” Under the combined operation of that original section 9 and section 28 of the same Act, the Financial Commissioner of Punjab framed a set of rules in the year 1932. Those rules conferred upon the Financial Commissioner the authority to appoint Tehsildars, to promote them, and to remove them from service in accordance with the procedures prescribed therein. After the Government of India Act, 1935 came into force, the Adaptation of Indian Laws Order, 1937 amended section 9 of the Punjab Land Revenue Act by deleting the words that followed the term “appointed”. This deletion removed the statutory power of the Financial Commissioner to make any rules relating to the appointment or dismissal of Tehsildars and Naib Tehsildars. Section 28, which had previously authorized the Financial Commissioner to make regulations governing the appointments, duties, emoluments, punishments and other matters of officers such as Kanungos, Zaildars, Inamdars and village officers, was also amended by the same Order, and the regulatory authority under that section was transferred expressly to the Provincial Government. As a result, the amendment to section 9 unequivocally stripped the Financial Commissioner of the power to formulate rules for the appointment and removal of Tehsildars and Naib Tehsildars. Because the amendment expressly repealed the earlier statutory power and did not contain any saving clause, the power, except with respect to transactions that had already been completed before the amendment, may be regarded, for all practical purposes, as having never existed.

Nevertheless, the continued operation of the Tehsildar Rules and the related powers of the authorities that administered them after the enactment of the Government of India Act, 1935 depended upon specific provisions that were made under the authority conferred by that Act. Section 310 of the Government of India Act authorized His Majesty, by Order‑in‑Council, to issue directions that would allow the provisions of the 1935 Act to operate for a limited period, subject to any adaptations or modifications that might be prescribed by such directions. Exercising that authority, the Government of India issued the Commencement and Transitory Provisions Order on 3 July 1936. Clause 15(2) of that Order provided that, until other legislation was enacted under the new Act, the conditions of service applicable to any person or class of persons appointed, or to be appointed, to serve His Majesty in a civil capacity in India would remain the same as they had been immediately before the commencement of Part III of the 1935 Act. In other words, the Order preserved the existing conditions of service for civil servants, including Tehsildars, until a new statutory scheme replaced them. This preservation was intended to ensure continuity of service and to avoid disruption during the transitional period that was triggered by the constitutional changes introduced by the Government of India Act, 1935.

The Court explained that clause twelve (d) of the Adaptation of Indian Laws Order, 1937—made under the authority given by section 293—contained a material provision stating that any repeal effected by that order would not disturb the operation of sub‑paragraph (2) of paragraph fifteen of the Government of India (Commencement and Transitory Provisions) Order, 1936. By virtue of the combined effect of sub‑paragraph (2) of paragraph fifteen of the 1936 Commencement and Transitory Provisions Order and the Adaptation of Indian Laws Order, 1937, the conditions of service applicable to civil servants were to remain unchanged until new provisions were introduced under the Government of India Act, 1935. The 1937 Order further expressly declared, in clause nine, that the rules framed under the Act—whether adapted or modified—would not be rendered invalid. Clause nine specifically provided that the provisions of the order which adapt or modify Indian laws with respect to the manner, authority, or legal basis of any exercisable power would not invalidate any notification, order, commitment, attachment, bye‑law, rule or regulation duly made or issued, or any act properly performed, before the commencement of the order.

The Court noted that, notwithstanding the removal of the Financial Commissioner’s power to frame rules, the Tehsildari Rules of 1932 continued to be in force. Clause ten of the Adaptation of Indian Laws Order further stated that, except as expressly provided in the order, all powers that under any law in force in British India—or any part of it—were vested in or exercisable by a person or authority immediately before the commencement of part III of the Government of India Act, 1935, would remain vested or exercisable until a new provision was made by a legislature or authority empowered to regulate the particular matter. Consequently, the authority of the Financial Commissioner under the rules that survived because of clause nine remained exercisable, except as limited by the Adaptation of Indian Laws Order, 1937.

The Court then turned to section 241(2) of the Government of India Act, 1935, which prescribed that the conditions of service for persons engaged in provincial affairs were to be determined by rules made by the Governor or by persons authorized to make such rules. However, until new provisions were introduced, this statutory provision was subject to the protection offered by sub‑paragraph (2) of paragraph fifteen of the 1936 Commencement and Transitory Provisions Order. The Court observed that reliance by the appellant’s counsel on clause seven of the Adaptation of Indian Laws Order—in support of the argument that only the Governor could exercise dismissal powers under the rules because he alone was the corresponding authority—could not be sustained. The Court clarified that clause seven applied solely to situations where an authority competent at the date of enactment of an Indian law to exercise a particular power or function ceased to exist and a corresponding new authority was constituted under any part of the Government of India Act, 1935. The clause did not apply where only the powers of an authority were transferred to another authority while the original authority continued to function.

The Court observed that the provision applied only in situations where an authority existing at the time an Indian law was enacted had ceased to function and a new authority had been constituted by or under any part of the Government of India Act, 1935; the provision did not extend to cases where the powers of an authority were simply vested in another authority while the former authority continued to exist. It further held that the conditions of service of civil servants, which had remained unchanged even after the Government of India Act, 1935, were brought into operation by the Commencement and Transitory Provisions Order, 1936, and that the Adaptation of Indian Laws Order expressly saved both the rules and the authority granted under those rules to the Financial Commissioner. Consequently, the order issued by the Financial Commissioner dismissing the appellant from service was not unauthorised. The Court rejected the appellant’s counsel’s contention that section 241 of the Government of India Act, 1935 permitted dismissal of provincial civil servants only by the Governor of the Province and by no other authority, finding that argument to have no force. The Court also considered the submission that fresh civil‑service rules framed in 1941 by the Government of the Province of Punjab had superseded the Punjab Tehsildari Rules, 1932, and that, even if those rules had not been overridden by the amendment made by the Adaptation of Indian Laws Order, 1937 in the Punjab Land Revenue Act, 1887, they were expressly repealed, thereby removing the Financial Commissioner’s power to dismiss a Tehsildar. The Court noted that this plea was never raised before the High Court. While acknowledging that new Civil Services Rules applicable to Punjab were indeed promulgated in 1941, the Court deemed it unnecessary to decide whether, under the Punjab Civil Service Rules, 1941, the Governor alone possessed the competence to dismiss a public servant of the Provincial Service, a subordinate service, an officer holding a special post, or any other class of government servant to whom those rules applied. Rule 1.4 expressly stated that the Civil Services Rules did not apply to any person whose appointments and conditions of service were governed by a special provision in force at the time. Such a special provision existed for the appointment and conditions of service of Tehsildars, and the Court found no evidence that those provisions had been superseded or abrogated by the 1941 Civil Services Rules. The appellant’s counsel argued that Tehsildars formed part of the Subordinate Services, Class III, and that the 1941 rules enacted under section 241 of the Government of India Act had superseded the 1932 Tehsildari Rules. The Advocate General for the State of Punjab countered that Tehsildars were not included in the Subordinate Services because no notification to that effect had been issued. The Court reiterated that the question concerning the effect of the 1941 rules had already been observed.

The Court observed that the argument concerning the rules framed in 1941 under section 241 of the Government of India Act had never been raised before Bishan Narain, J., nor before the High Court on appeal, and that it was therefore difficult for this Court to consider a plea that depended on government notifications that were being introduced for the first time in the appeal without any prior submission of those notifications. Consequently, the Court held that the record did not support the contention that the Punjab Tehsildari Rules of 1932 were not in operation at the time of the dismissal, and it found no evidence that the Financial Commissioner lacked the authority to dismiss a Tehsildar at the material date. Accordingly, the appeal was dismissed with costs. Justice Raghubar Dayal expressed regret that he could not agree with the view that the Punjab Tehsildari Rules of 1932 applied to the service of Tehsildars and Naib Tehsildars in 1953. The appellant had been an officiating Tehsildar in the State of Punjab when he was dismissed by the Financial Commissioner, Punjab, on 26 October 1953. After failing to obtain relief through his appeal and a revision to the Government, he filed a petition under Article 226 of the Constitution in the High Court of Punjab, seeking reinstatement from the date of dismissal by the issuance of an appropriate writ. In support of his prayer, the petition asserted that the Financial Commissioner was not a competent authority to order the dismissal of a Tehsildar because of Rule 2.14 of the Punjab Civil Services Rules, read with Chapter XV, the rules being framed under Article 309 of the Constitution. The State contended that the petitioner’s terms and conditions of service were governed by the Punjab Tehsildari Rules, 1932, which empowered the Financial Commissioner to appoint and dismiss Tehsildars. Bishan Narain, J., who heard the petition, allowed it, holding that the Tehsildari Rules had ceased to operate following the amendment of section 9 of the Punjab Land Revenue Act, 1887, by the Government of India (Adaptation of Indian Laws) Order, 1937, which deleted the portion of the section that authorised the Financial Commissioner to make rules for the appointment and removal of Tehsildars and Naib Tehsildars. The adaptation order and the Government of India Act, 1935, did not preserve the validity of those rules despite the repeal of the relevant provision in section 9. The Judge observed that no party claimed that the Punjab Civil Service Rules contained any provision keeping the 1932 rules alive, nor that after the amendment the Governor or the Provincial Government had ever delegated appointment and dismissal powers to the Financial Commissioner. Accordingly, the Tehsildari Rules were inoperative after the commencement of the Act and could not be revived under Article 372 of the Constitution. Holding that the Civil Services Rules, which governed all State services, applied to Tehsildars and Naib Tehsildars and that those rules did not empower the Financial Commissioner to appoint or dismiss a Tehsildar, the Court ordered that the appellant’s dismissal was void and of no legal effect. The State subsequently filed a Letters Patent Appeal, claiming that the Tehsildari Rules were in force on 25 January 1950 in view of sections 292 and 293 of the Act.

In the judgment, it was observed that the rules made after the 1935 Act did not contain any provision that would keep the 1932 rules alive and in force. The respondent did not contend that, following the amendment of Section 9 of the Punjab Act, either the Governor or the Provincial Government ever delegated to the Financial Commissioner the authority to appoint or dismiss Tehsildars and Naib Tehsildars. Consequently, the Tribunal held that the Tehsildari Rules, being inoperative after the commencement of the Constitution‑making Act, could not be revived by reference to Article 372 of the Constitution. The Tribunal further held that the Civil Services Rules, which governed all State services, also governed the services of Tehsildars and Naib Tehsildars, and that nothing in those rules empowered the Financial Commissioner to appoint or dismiss a Tehsildar. On that basis, the petition was allowed and the appellant’s dismissal was declared void and of no legal effect.

The State responded by filing a Letters Patent Appeal. In the appeal, it was argued that the Tehsildari Rules remained in force on 25 January 1950 by virtue of Sections 292 and 293 of the Act, Section 18(3) of the Indian Independence Act, and thereafter under Article 372 of the Constitution. The State further asserted that the earlier finding—that the conditions of service of Tehsildars were governed by the Civil Services Rules—was erroneous. The appellate court examined the origin of the Tehsildari Rules and concluded that they had been created either under the powers conferred by the Government of India Act, 1919, or under the powers conferred by the Revenue Act. In the first scenario, the rules continued to be effective because Section 276 of the 1919 Act and Article 313 of the Constitution had not been shown to have been displaced by any subsequent rule or to be inconsistent with the Constitution. In the second scenario, the rules persisted by virtue of paragraphs 9 and 10 of the 1937 Adaptation Order, which explicitly indicated that the Financial Commissioner retained the authority to appoint and dismiss Tehsildars and that those powers had not been abrogated or withdrawn. Accordingly, the Letters Patent Appeal was allowed, the writ petition was dismissed, and the State’s order stood. The appellant then sought a further appeal by way of a certificate granted by the High Court.

On this further appeal, the appellant contended that the Tehsildari Rules had ceased to operate from the commencement of the Constitution‑making Act and, in any event, had become ineffective from 1 April 1941 when the Governor’s Civil Services Rules came into force. The appellant argued that, therefore, the Financial Commissioner lacked the competence to dismiss him. It was noted that the respondent had not urged before this Court that the Tehsildari Rules were framed under the Government of India Act, 1919, and that, consequently, they continued to be in force under Section 276 of that Act.

In this case the argument that the provisions of the Act and Article 313 of the Constitution could support a rule allowing the Financial Commissioner to appoint and dismiss Tehsildars was rejected. The Court observed that even if such an argument had been presented, it would have failed because a rule granting that power to the Financial Commissioner conflicted with section 241 of the Act. Section 241 provides that, unless the Act itself expressly states otherwise, appointments to the civil services or any civil posts under the Crown in India must be made for provincial services and for posts connected with provincial affairs by the Governor or by persons designated by the Governor. The parties did not contend that, after the Act came into force, the Government issued any order that gave the Financial Commissioner the authority to appoint and dismiss Tehsildars. The State, however, relied on several sources to justify the Financial Commissioner’s order. It cited paragraphs 9 and 10 of the Adaptation Order of 1937 and rule 1.4 of the Civil Services Rules of 1941. At a later hearing, the State also referred to the effect of paragraph 7 of the same Order, which had not been mentioned at the first hearing, and to clause (2) of paragraph 15 of the Government of India (Commencement and Transitory Provisions) Order of 1936 (referred to as the Transitory Order), together with paragraph 12 of the Adaptation Order. The underlying contention was that the Tehsildari Rules remained operative because they were sustained by paragraphs 9 and 10 of the Adaptation Order and by the Transitory Order until the Governor introduced new rules, and that the Tehsildari Rules continued to be in force after 1 April 1941 because the positions of Tehsildar had specific provisions for appointment and conditions of service contained in those rules.

The Court then indicated that it would first examine how the Adaptation Order affected the Tehsildari Rules. To that end, it reproduced the relevant statutory language. Section 292 of the Act states: “Notwithstanding the repeal by this Act of the Government of India Act, but subject to the other provisions of this Act, all the law in force in British India immediately before the commencement of part III of this Act shall continue in force in British India until altered or repealed or amended by a competent Legislature or other competent authority.” Section 293 of the Act provides: “His Majesty may by Order in Council, made at any time after the passing of this Act, specify that, from such date as may be mentioned in the Order, any law in force in British India or in any part of British India shall, until repealed or amended by a competent Legislature or other competent authority, operate subject to such adaptations and modifications as His Majesty considers necessary or expedient for bringing the provisions of that law into accord with the provisions of this Act and, in particular, into accord with the provisions thereof.” These sections set out the mechanism by which existing laws could continue temporarily and be modified to align with the new constitutional framework.

In this part of the judgment, the Court explained that the provisions of the Act reorganised the governments and authorities in India under new names and set out how legislative and executive powers were to be shared between the Federation and the Provinces. The Court added a safeguard that no law of the kind described would be imposed on any Federated State by an Order in Council made under this section. The Court then clarified the meaning of the term “law” in this section, stating that it expressly excludes an Act of Parliament but includes any ordinance, order, bye‑law, rule or regulation that had the force of law in British India. It was on the basis of the power granted by this section that the Adaptation Order was issued. The Court observed that the existing law was to remain in force only to the extent that it was consistent with the new Act. Furthermore, the Court noted that section 293 of the Act conferred upon His Majesty the authority to amend existing laws so that they would be brought into conformity with the provisions of the Act, and specifically to align them with the provisions of the new Act that had re‑constituted governments and authorities in India under different names. The Court then turned to paragraph 3 of the Adaptation Order, which stipulated that the laws listed in the Schedules would operate subject to the adaptations and modifications directed by those Schedules, and that such laws would continue to have effect until they were repealed or amended by a competent authority or legislature. The Court proceeded to examine the effect of the Adaptation Order on section 9 of the Revenue Act. Before the amendment, section 9 read: “The Provincial Government shall fix the number of Tehsildars and Naib Tehsildars to be appointed and the Financial Commissioner may make rules for their appointment and removal.” The Adaptation Order replaced the word “Provincial” with “State” and omitted the words that followed “appointed.” As a result, the power previously given to the Financial Commissioner to make rules concerning the appointment of Tehsildars and Naib Tehsildars was removed, and the corresponding provisions were deemed repealed by the Adaptation Order. The Court explained that the legal consequence of this repeal was that the Financial Commissioner could never have possessed such a power, and any rules that he had framed would be considered to have been made without jurisdiction. This conclusion was not contested and was supported by the observations in Watson v. Winch (1916 1 K.B. 688). After the amendment, the Revenue Act made no provision regarding the appointment of Tehsildars and Naib Tehsildars. The Court inferred that this omission was intentional because the matter was now governed by the statutory provision found in sub‑section 1 of section 241 of the Act, which provides that, except as expressly provided by the Act, appointments to civil services and civil posts under the Crown in India, after the commencement of Part III of the Act, shall be made, in the case of provincial services and posts connected with provincial affairs, by the Governor or a person directed by him.

The Court observed that the Adaptation Order altered sections 7 and 8 by removing the clauses that authorised the State Government to dismiss officers it could appoint under those sections. The Order’s paragraph 9 states: “The provisions of this Order which adapt or modify Indian laws so as to alter the manner in which, the authority by which, or the law under or in accordance with which any powers are exercisable, shall not render invalid any notification, order, commitment, attachment, bye‑law, rule or regulation duly made or issued, or anything duly done, before the commencement of this order; and any such notification, order, commitment, attachment, bye‑law, rule, regulation or thing may be revoked, varied or undone in the like manner to the like extent and in the like circumstances as if it had been made, issued or done after the commencement of this Order by the competent authority and under and in accordance with the provisions then applicable to such a case.” By this provision, the Adaptation Order changes the legal basis on which the Tehsildari Rules were created, but it does not invalidate those rules. Rather, for the purpose of revoking, varying, or undoing the rules, they are to be treated as if they had been made under the Act. The paragraph does not require the rules to remain in their existing form even when they conflict with the Act, and the Order itself could not impose such a requirement. The effect of paragraph 9 is limited to situations where the Order expressly modifies a law; it does not apply where the Act itself later amends or supersedes the same provisions. Consequently, if the Act already contains a provision that contradicts a rule, there is no further occasion for a competent legislature or authority to alter that rule. Accordingly, the portions of the Tehsildari Rules that allowed the Financial Commissioner to appoint and dismiss Tehsildars and Naib Tehsildars became inoperative, because that power conflicted with section 241 of the Act, which vests the authority to appoint (and thereby dismiss) such officers in the Governor or any person directed by him.

The Court then turned to the earlier decision in Pradyat Kumar v. Chief Justice of Calcutta, which examined whether the Chief Justice of the Calcutta High Court possessed the power to dismiss a High Court employee. It was undisputed that the Chief Justice was the appointing authority for the appellant, but it was contested that the same authority possessed the power of dismissal. The contention centred on the scope of the Chief Justice’s power under the relevant service rules and constitutional provisions.

It was submitted that the appellant was a public servant whose service was governed by the Civil Services (Classification, Control and Appeal) Rules of 1930, as amended from time to time, and that those rules remained applicable even after the enactment of the Government of India Act, 1935 and later after the Constitution of India came into force. The parties did not dispute that the concept of “dismissal” fell within the “condition of service” of a public servant, a principle that had been affirmed by the Privy Council in North West Frontier Province v. Suraj Narain Anand. They also agreed that the authority to make rules relating to the conditions of service of High Court staff was vested in the Chief Justice of the High Court under section 242(4) taken together with section 241 of the Act and also under Article 229(2) of the Constitution. Nevertheless, it was contended that the Chief Justice had not framed any such rules, and consequently, by virtue of section 276 of the Act and Article 313 of the Constitution, the Civil Services Rules continued to apply to the appellant. In examining this contention, the Court observed at page 288 that “It will be noticed that clause 8 (of the Letters Patent of the High Court, 1865, as amended in 1919) specifically vests in the Chief Justice the power of appointment, but makes no mention of the power of removal or of making regulations or provisions. But it is obvious from the last portion of clause 4 that such power was taken to be implicit under clause 8 and presumably as arising from the power of appointment.”

At the same page, while considering the powers of the Supreme Court of Calcutta under the Charter of 1774, the Court further stated, “The power of removal or of taking other disciplinary action as regards such appointees was not in terms granted. But there is historical evidence to show that the power of appointment conferred under the Charter was always understood as comprising the above powers.” The Court reiterated this view by observing, “Thus it is clear that both under the Charter of the Supreme Court as well as under the Letters Patent of the High Court, the power of appointment was throughout understood as vesting in the High Court or the Chief Justice, the complete administrative and disciplinary control over its staff, including the power of dismissal.” Moreover, at page 291, the Court emphasized that, regarding dismissal, “the position under the Constitution of 1950 is not open to any argument or doubt. Article 229(1) which in terms vests the power of appointment in the Chief Justice is equally effective to vest in him the power of dismissal.” This conclusion follows from section 16 of the General Clauses Act, which, by virtue of Article 367(1) of the Constitution, applies to the construction of the word “appointment” in Article 229(1). Section 16(1) of the General Clauses Act thus confirms that the power of appointment includes the power to suspend or dismiss.

The General Clauses Act, in its Section 16, expressly states that the term “appointment” embraces the power to suspend or dismiss a person. In the Adaptation Order, paragraph 7 provides that any reference, in any Indian law that was in force immediately before the Order commenced, to an authority that was competent at the date of that law to exercise certain powers or perform any functions in any part of British India shall, where a corresponding new authority has been created under any part of the Government of India Act 1935 then in force, be deemed to refer to that new authority until such reference is duly repealed or amended. Applying this rule, the Court held that a mention of the Financial Commissioner in the Tehsildari Rules concerning the appointment and removal of Tehsildars and Naib Tehsildars must be interpreted as a reference to the authority established under the Act for those purposes. The earlier power of appointment and dismissal resided with the Financial Commissioner; however, under section 241 of the Act the Governor acquired the corresponding authority to appoint and dismiss such officers. Consequently, the reference to the Financial Commissioner in the Rules should be read as a reference to the Governor, or to any officer appointed by the Governor for that purpose, for as long as those Rules remained operative after the commencement of Part III of the Act, that is, until they are repealed or amended. The Court rejected the State’s argument that the continued existence of the Financial Commissioner’s office barred the application of paragraph 7. The term “new” does not imply that the old office must cease to exist; rather, “corresponding new authority” simply denotes the authority that now possesses the power formerly exercised by the earlier authority.

Paragraph 10 of the Adaptation Order states that, except as provided by the Order, all powers that were vested in or exercisable by any person or authority under any law in force in British India, or any part thereof, immediately before the commencement of Part III of the Government of India Act 1935 shall continue to be vested or exercisable until a different provision is made by a legislature or authority empowered to regulate the matter. The Court observed that this paragraph, together with paragraph 7, means that if a new authority has been created to exercise a particular power, the old authority no longer retains that power. Conversely, where no such new authority has been established, the old authority continues to exercise the power until a valid new provision is made. The Court therefore concluded that paragraph 10 should not be interpreted so as to allow the old authority to retain a power when the Act itself has instituted a new authority for that purpose. Interpreting the Order in that manner would defeat the purpose of the adaptation required by section 293 of the Act.

In the Adaptation Order the only clause that directly bears on the exercise of powers is paragraph 7, and when that clause is read together with paragraph 10 the combined effect is that if a new authority has been constituted to exercise a particular power or to discharge a particular function, that power ceases to remain vested in the old authority; however, in the absence of any corresponding new authority, the old authority continues to exercise the power until a valid provision is made by a legislature or other body empowered to regulate the matter. Accordingly the Court held that paragraph 10 should not be construed so as to permit the old authority to retain a power when the Government of India Act itself creates a different authority for that purpose, because such a construction would undermine the purpose of the adaptation and would hardly further the objectives of section 293 of the Act. To illustrate the problem, the Court quoted a passage from Pradyat Kumar v. Chief Justice of Calcutta which observed that the continued application of the Civil Services Rules without adaptation would create an anomalous situation: although the 1935 Act specifically vested in the Chief Justice the power of appointment, the framing of service rules and the power of dismissal, thereby indicating that the Chief Justice possessed disciplinary authority, the Chief Justice would in fact have no disciplinary control simply because he chose not to make fresh rules and remained content with the old rules. The Court noted that the same type of anomaly would arise in the present case if, despite the Act vesting the power of appointment and rule‑making in the Governor, the Governor were deemed to have lost that power merely because he had not framed any new rules. Section 310 of the Government of India Act, 1935, was then set out to provide the constitutional framework for addressing transitional difficulties, acknowledging that problems may arise in shifting from the provisions of the earlier Government of India Act to those of the new Act and from Part XIII of the new Act to Part II, and that the nature of those problems and the measures needed to meet them could not be fully foreseen at the time of the Act’s passage. Consequently the section empowers His Majesty, by Order in Council, to make temporary adaptations for a limited period specified in the Order; such an Order may direct that the old Act and any still‑operative provisions of the earlier Act shall, for the specified period, continue to have effect subject to any adaptations and notifications prescribed, and may also provide, for that limited period, temporary provisions deemed necessary to ensure a smooth transition while it is being effected and immediately thereafter.

In this provision, the statute authorised the Crown to make, by Order in Council, temporary measures intended to ensure that every government in India and Burma possessed adequate revenue to carry out its functions. It also permitted the making of further temporary provisions aimed at removing any difficulties that might arise during the transition, as specified in the Order. The statute further limited the time within which such Orders in Council could be issued. No Order in Council concerning the transition from the provisions of Part XIII of the Act to those of Part II could be made after six months had elapsed from the establishment of the Federation. Likewise, no other Order in Council under this section could be made after six months had passed from the commencement of Part III of the Act. Paragraph 15 of the Transitory Order was quoted. The first sub‑clause provided that for a period of twelve months beginning on the date when Part III of the new Act came into force, any person who was occupying an office under the Crown in India immediately before that date could continue to hold that office. The continuance was allowed notwithstanding that the person was not a British subject and notwithstanding that no declaration under section 262 of the new Act had been made in his favour. The second sub‑clause stated that until the new Act made other provisions, the conditions of service applicable to any person, or to any class of persons, appointed or to be appointed to serve His Majesty in a civil capacity in India, would remain the same as those that had applied to that person or class immediately before the commencement of Part III of the new Act. The Court observed that the provisions of sub‑clause (2) of paragraph 15 were intended to give effect to clause (c) of sub‑section (1) of section 310, and not to clause (a) of the same sub‑section. The latter clauses did not direct that any provisions of the Government of India Act 1935 or of the Government of India Act 1919 should operate subject to specified adaptations, modifications, or for a limited period. Consequently, those earlier provisions did not disturb the operation of section 241(1) of the Act, which empowered the Government to make appointments. The Court noted that the power of appointment necessarily included the power to dismiss. The Court further recognised that conditions of service encompass rules governing dismissal or removal of a government servant. However, the Court held that the previous conditions of service would continue only until the new Act made other provisions. Since section 241(1) already designated the Governor as the appointing authority, it logically followed that the Governor also possessed the authority to dismiss. The Court found that the sub‑paragraph under consideration did not contain any provision extending the conditions of

The Court examined whether the provision that linked dismissal to the coming into force of the Act could be read as allowing the Tehsildari Rules to remain in effect until further provisions were made under the Act. Even assuming such an interpretation, the reference in those Rules to the Financial Commissioner must be understood as a reference to the Governor, in accordance with paragraph 7 of the Adaptation Order, a view the Court had previously endorsed. The State argued that the Adaptation Order contained a clause that insulated the provisions of sub‑paragraph (2) of paragraph 15 of the Government of India (Commencement and Transitory Provisions) Order, 1936, from any repeal effected by the Adaptation Order. The Court clarified that this clause merely prevents a repeal by the Adaptation Order from affecting that sub‑paragraph; it does not bar the operation of that sub‑paragraph from being altered by the Act itself or by any part of the Adaptation Order that does not repeal a law. Consequently, when constructing the service‑condition rules, the Court must apply the provisions of paragraph 7 of the Adaptation Order, which do not repeal any law, and therefore treat any reference to the Financial Commissioner in the Rules as a reference to the Governor. Even if the State’s contention regarding the effect of sub‑paragraph (2) of paragraph 15 of the Transitory Order and other parts of the Adaptation Order were accepted, the Tehsildari Rules would continue only until the Governor, exercising the power conferred by section 241(2) of the Act, made new rules to replace them.

The Governor of Punjab exercised the authority granted by section 241 of the Government of India Act, 1935, to issue the Punjab Civil Services Rules, which became effective on 1 April 1941. The learned Single Judge held that these Rules applied to the appellant and observed that no argument was advanced that the Civil Service Rules made after the 1935 Act contained any provision preserving the 1932 Rules in force. The judgment under appeal made no contrary statement and, in fact, did not refer to those earlier Rules at all. The State’s Advocate General contended that the Rules did not apply to the appellant because of clause (ii) of Rule 1.4. The Court disagreed with that contention. Rule 1.2 provides that, except as otherwise provided in Rule 1.4 or any other rule, the Rules shall apply to all Government servants belonging to the categories listed, who are under the administrative control of the Punjab Government and whose salaries are chargeable to the revenue of the Punjab. This provision establishes the scope of applicability, rendering the State’s reliance on the exception in Rule 1.4 unfounded.

In the Punjab Civil Services Rules, rule 1.2 set out the categories of persons to whom the rules applied. Sub‑paragraph (a) specified that, except as provided in rule 1.4 or any other rule, the rules applied to all government servants who were under the administrative control of the Punjab Government and whose salaries were charged to the Punjab revenue. The categories listed were: (1) members of Provincial Services; (2) members of Subordinate Services; (3) holders of Special Posts; and (4) any other government servant or class of government servants whom the competent authority could, by a general or special order, bring within the scope of the rules. Sub‑paragraph (b) further stated that the rules also applied to (1) persons serving on the staff attached to the High Court, Lahore, and to the secretarial staff of the Governor, for whom the power to frame rules had been vested in the Chief Justice and the Governor respectively under sections 242(4) and 305(2) of the Government of India Act, 1935; and (2) the subordinate ranks of the Punjab Police forces appointed under special Acts, to the extent that those Acts were not inconsistent with the provisions of the Government of India Act, 1935, namely section 243. Rule 1.3 allowed the competent authority to make rules that were inconsistent with the present rules, provided that such inconsistency was agreed to by the person appointed. Rule 1.4 listed the exceptions to the application of the rules. It provided that the rules would not apply to (i) any government servant with whom the Government had a specific contract or agreement covering any matter dealt with in the rules, to the extent that the contract or agreement made a specific provision, as referred to in rule 1.3; (ii) any person whose appointment and conditions of service were subject to a special provision made by or under any law then in force; and (iii) any government servant or class of government servants whom the competent authority could, by a general or special order, direct that the rules should not apply in whole or in part. One of the classes mentioned in clause (iii) comprised those employed only occasionally or whose service could be terminated on one month’s notice or less. A list of such government servants was provided in Appendix 2. The State relied on clause (ii) of rule 1.4, arguing that the Tehsildari Rules governing the appointment and conditions of service of Tehsildars and Naib Tehsildars constituted a special provision made by or under a law then in force. The Court observed that if every service that had pre‑existing rules before the Civil Services Rules, 1941, were treated as falling within the exception of clause (ii), the effect would be that the Civil Services Rules would not apply to most services and persons holding posts. Such an expansive construction, the Court held, could not have been intended by the rule‑making authority and should not be imposed unless a compelling reason existed, which the Court did not find anywhere in the rules. Consequently, the Court was of the opinion that Tehsildars and Naib Tehsildars were not covered by this exception.

The Court observed that the Tehsildari rules create a separate Punjab Service comprising Tehsildars and Naib Tehsildars. It held that clause (ii) of rule 1.4 does not refer to entire services but instead is directed at individual persons for whose appointment a special provision is made by or under any law then in force. The language of the clause, therefore, concerns special provisions that apply to a specific person rather than to rules that govern a whole service. The Court found it difficult to accept that service‑wide rules could be treated as special provisions for individual members of that service. According to the Court, any special provision contemplated by clause (ii) must be enacted under a law that is operative at the time the Civil Services Rules are applicable to the service and the individual concerned. To treat the Tehsildari Rules as such a law would require assuming that those rules remained in force after the Civil Services Rules of 1941 had taken effect, and the Court rejected that presumption. The Court noted that the Tehsildari Rules were not made under any law that continued to be in force after the Civil Services Rules came into operation. They had been issued under a provision of the Punjab Land Revenue Act, a provision that was repealed by the Adaptation Order of 1937. Consequently, the Rules could not be said to have been made under any law that was in force at the relevant later date, and the Court concluded that clause (ii) of rule 1.4 did not apply to the appellant’s case. Accordingly, the appellant’s situation was governed by rule 1.2, which deals with persons for whom an Act or other existing statutes prescribe appointment and service conditions. The Court further examined section 243 of the Act, which provides that the conditions of service for subordinate ranks of the various police forces shall be determined by the respective Acts relating to those forces, notwithstanding any other provisions of the Act. This provision is referenced in sub‑clause (2) of clause (b) of rule 1.2. The Court recognised that holders of special posts listed in item (3) of clause (a) of rule 1.2, as well as other officers under the administrative control of the Punjab Government, might be subject to sections 244 to 247 of the Act, thereby removing them from the Punjab Government’s rule‑making authority. The Court also acknowledged that other statutes might lay down special provisions for appointment and service conditions of persons serving the Punjab Government. Finally, the Court referred to Chapter XIV of the Civil Services Rules, specifically Rule 14.1, which states that, aside from the All‑India Services under the Secretary of State’s rule‑making control, the services under the administrative control of the Punjab Government are divided into the Provincial Services and the Subordinate Services.

In this case the Court observed that the Punjab Government classifies every service under its administrative control into one of two categories, namely the Provincial Services and the Subordinate Services, and therefore each service must fall within either the Provincial or the Subordinate class. The Court noted that the posts of Tehsildar and Naib Tehsildar, which are governed by the Tehsildari Rules, are to be placed under the Subordinate Services for the purpose of rule 14.1, a conclusion that is also supported by the wording of rules 14.5 and 14.6. The Court explained that the Tehsildari Rules deal specifically with the recruitment, appointment, seniority and disciplinary penalties—including the penalty of dismissal—applicable to Tehsildars and Naib Tehsildars, and that these rules prescribe the procedure to be followed by the authorities empowered to impose such penalties. However, the Court pointed out that the Tehsildari Rules do not address a large number of matters that affect the service of these officers and that are covered by the Civil Services Rules, such as matters other than appointment and dismissal. Consequently, in the areas not covered by the Tehsildari Rules, the Tehsildars and Naib Tehsildars must be governed by the Civil Services Rules. The Court could not accept any suggestion that there were no governing rules for those matters, nor could it accept a reading of clause (ii) of rule 1.4 that would render the Civil Rules inapplicable to Tehsildars and Naib Tehsildars in the very matters—appointment and dismissal—where the Tehsildari Rules operate. The Court further observed that several provisions expressly refer to Tehsildars and Naib Tehsildars, leaving no doubt that the Civil Service Rules apply to them. Rule 2.16 defines “duty”, and clause (b) of that rule provides that a government servant is also deemed to be on duty under the circumstances specified in the schedule to Chapter II; the schedule, in clause (4) of item II, expressly states that a Tehsildar or a Naib Tehsildar, in certain prescribed circumstances, will be treated as being on duty even if he has spent time beyond his ordinary sphere of duty. Rule 5.35 deals with the circumstances in which a competent authority may grant rent‑free accommodation to a government servant, and Appendix 7 to that rule lists the categories of servants entitled to such quarters; entry No. 3 in that appendix includes Tehsildars and Naib Tehsildars. Rule 8.23 specifies the authorities competent to grant various types of leave, and Appendix 12 identifies the Commissioners of Divisions as the authorities who may grant leave to Tehsildars and Naib Tehsildars, as shown in entry No. 7. Further, Appendix 17, referred to in rule 8.61, authorises Deputy Commissioners to grant casual leave to Tehsildars and Naib Tehsildars. Finally, Appendix 23, which deals with the Government Servants’ Conduct Rules, 1935, is also referenced in rule 14.8, thereby confirming the applicability of those conduct rules to the officers in question.

The Court held that the Civil Service Rules of 1941 governed the conditions of service of Tehsildars and Naib Tehsildars. It concluded that the Tehsildari Rules of 1932 ceased to be operative from 1 April 1941, even though those rules may have remained formally effective until that date because of the Transitory Order and the Adaptation Order. Consequently, the Tehsildari Rules were not in force immediately before the Constitution came into effect and could not have continued after 26 January 1950. Article 313 of the Constitution provided that laws which were in force immediately before the commencement of the Constitution and which applied to any public service existing thereafter would continue until the Constitution made other provisions for them. Acting under the proviso to Article 309, the Governor of Punjab exercised his authority to formulate the Punjab Civil Service Rules, which were slated to become effective on 1 April 1953. The rules that corresponded to those of 1941 were essentially similar, and therefore, in the Court’s view, the Civil Service Rules of 1941 applied to the services of Tehsildars and Naib Tehsildars.

The Court then noted that rule 1.2 of the Punjab Civil Service Rules described the categories of services under the administrative control of the Punjab Government differently from rule 1.2 of the 1941 rules. Under the newer scheme, members of Provincial Services were placed in three categories: classes I and II formed the first category, class III the second, and class IV the third. The schedule to rule 14.5 listed the services declared as Provincial Services, Classes I and II. Rule 14.6 defined Specialist Services as those services—other than All‑India and Provincial Services, Class I and II—that the Government might, from time to time, declare in the Punjab Gazette as Specialist Services. Rule 14.7 provided that Provincial Services, Classes III and IV, comprised persons to whom those rules applied and who were not already included in Provincial Services, Classes I and II, or the Specialist Services. Accordingly, Tehsildars and Naib Tehsildars fell either in Provincial Services, Class III or Class IV. The appellant was dismissed by an order of the Financial Commissioner dated 26 October 1953, at a time when the Punjab Civil Services Rules that had become operative on 1 April 1953 were in force. Rule 14.9 permitted a competent authority to issue rules specifying the penalties that could be imposed on members of the services and the procedure for preferring appeals against such penalties. Appendix 24 to these rules contained the Punjab Civil Services (Punishment and Appeal) Rules, 1952. Rule 6 of those rules stated that, subject to the provisions of clause (1) of …

In this case, the Court observed that Article 311 of the Constitution of India requires that the authority empowered to impose any penalty specified in rule 4 on a person to whom those rules apply must be an authority that the Government has expressly prescribed in the rules governing the appointment and conditions of service of such persons. The Court noted that the material on record did not demonstrate that the Financial Commissioner had been listed by the Government as one of the authorities prescribed in the rules that regulate the appointment and conditions of service of Tehsildars and Naib Tehsildars. Accordingly, the Court concluded that the Financial Commissioner could not be treated as a competent authority to dismiss a Tehsildar in the year 1953. The Court therefore held that the dismissal of the appellant by the Financial Commissioner was illegal. On that basis, the Court allowed the appeal, ordered that costs be awarded to the appellant, set aside the order that was under challenge, and restored the order dated 4 April 1957 issued by the learned Single Judge. However, after considering the view of the majority, the Court dismissed the appeal, directing that the costs of the proceedings be borne by the appellant. The final order was that the appeal was dismissed.