K.Veeraswami, J. -
(1.) ON a petition by the Respondent, who is a former Special Government Pleader, Alagiriswami, J., quashed G.O. Ms. No. 685, Revenue, dated 22nd March, 1968. The State has, therefore, filed this Appeal though, the Chief Secretary and the Revenue Secretary to the Government.
(2.) THE post of the Special Government Pleader was created by Government by an order dated 18th June, 1962. This was done on recommendation from the State Housing Board. The Special Government Pleader was to be in charge of writ petitions relating to Neighbourhood Projects and Housing. Thiru R. Viswanathan Advocate, was appointed to the post. The order which actually issued from the Industries (Housing) Department said that the post was for a year. By an order dated 30th November, 1964, made by Government from the Revenue Department, the same gentleman acting as Special Government Pleader for Housing Board was 'temporarily' appointed as Special Government Pleader for Commercial Taxes Department. He was to attend to all sales tax cases contested in the High Court, including Petitions, Writ Appeals and Special Leave Petitions "in addition to his work as Special Government Pleader, State Housing Board". The order proceeded to say, "his services may also be utilised if necessary in defending complicated cases before the Sales Tax Appellate Tribunal - -" He would be entitled to fees for his work for the Commercial Taxes Department on the scale of fees prescribed in the Standing Orders issued in G.O.Ms. No. 2606 Public (General - -F), dated 25th September, 1968, as subsequently amended, and subject to revision every year. So far as the fees payable for work for the Housing Board was concerned, the Board was to bear it. The retainer Was fixed at Rs. 300 which was to be shared between the two Departments in the ratio of 1:10. Thiru R. Viswanathan, having resigned on 19th April, 1966, the post fell vacant. The Government, by G.O.Ms. No. 1545, Revenue, dated 4th May, 1966, appointed the Respondent as Special Government Pleader for Commercial Taxes Department. His duties were specified in the same way as for his predecessor as Special Government Pleader for' Commercial Taxes, and so too, his fees. As far his retainer, it was to be the same as sanctioned in G.O.Ms. No. 1241, Revenue, dated 13th April, 1966, that is to say, it was to be 'shared, as mentioned earlier in the ratio of 1:10 as between the Housing Board and the Commercial Taxes Department. The post of Special Government Pleader was continued from year to year, by orders issuing from the Industries Department (Housing) of Government, and by an order from the same Department dated 12th August, 1966, the post was extended from 1st April, 1966 to 31st March, 1967 or till the heed for it ceased, whichever was earlier. In view, however, of the resignation of Thiru R. Viswanathan and as the Respondent had taken charge as Special Government Pleader, Commercial Taxes, with effect from nth May, 1966, the order said:
The Government appoint Sri M.S. Ramaswami, B.A.B.L...,as Special Government Pleader, with effect from nth May, 1966. He will be in charge of all writ petitions relating to Neighbourhood Projects and other Housing Projects of the State Housing Board and writ appeals arising from such petitions. The terms and conditions referred to in para. 1 above will continue to apply subject to the modification that the retainer fee of Rs. 300 be apportioned in the ratio of 10:1 between the Commercial Taxes Department and State Housing Board respectively as already ordered in G.O.Ms. No. 1.241, Revenue, dated 13th April, 1966.
The notification which was published pursuant, to the order stated that Sri M.S. Ramaswamy was appointed as Special Government Pleader, for neighbourhood and other Housing Projects of the State Housing Board, with effect from 11th May, I966. On 28th September, 1966, Government by the Revenue Department, informed the Respondent that in modification of the earlier orders, he would be governed by the terms and conditions of service prescribed in the Standing Orders applicable to Law Officers attached to the High Court, issued in G.O.Ms. No. 2606 Public (General -F), dated, 25th September, 1968. That meant that he was entitled to hold the post until he attained the age of 60 years, but such continuance was, however, subject to termination of service by the Officer resigning by giving six months notice to Government, or by' the latter, by giving him similar notice. This order reiterated that the retainer should be shared as between the two departments as already mentioned. Industries 'Department (Housing) by G.O.Ms. No. 2894,' dated 8th September, 1967, abolished the post with immediate effect. The order read:
In G.O.Ms. No. 3333, (Housing) Industries, Labour and Housing, dated 12th August, 1966, the post of the Special Government Pleader, Madras, was continued from 1st April, 1965 to 31st March, 1967 and Thiru M.S. Ramaswamy was appointed to this post and placed in charge of all writ petitions relating to Neighbourhood Projects of the State Housing Board and writ appeals arising from such petitions. The Government have examined the question of continuing the post of Special Government Pleader, Madras, beyond 31st March, 1967, and they have decided that this post need not be continued. They accordingly direct that this post should be abolished with immediate effect and the work pertaining to writ petitions relating to Neighbourhood Projects and other Housing Projects of the State Housing Board and the writ appeals arising from such petitions be entrusted to the Government Pleader, Madras.
The Respondent was accordingly requested to hand over charge of the work relating to the said matters, to the Government Pleader. This the Respondent did as directed, and he was asked to intimate the Government the date of handing over charge so as to enable orders to be passed continuing the post of Special Government Pleader, beyond 31st March, 1967. This was followed by another order, G.O.Ms. No. 237 Public (General -F), dated 7th February, 1968, which directed the Respondent to hand over to the Government Pleader all cases relating to Commercial Taxes Department in the High Court. The Respondent acknowledged the receipt of this order, but told the Chief Secretary to Government of the terms of his appointment, as modified by order dated; 28th September, 1966, and stated that he was entitled to six months notice if the Government wanted to terminate his appointment as Special Government Pleader and that he claimed such notice. To this, the answer of the Government was the impugned order, G.O. Ms, No. 685, Revenue, dated 22nd March, 1968 which Alagiriswami, J., has quashed. In that order the Government pointed out that the post of Special Government Pleader created in 1962 was extended from time to time upto September, 1967, when it was abolished with immediate effect and that although the Respondent continued to handle Commercial Tax Cases even after that date, there was no post of Special Government Pleader for Commercial Taxes from 19th September, 1967, onwards for him to hold. The order went on to say:
The Government, therefore, now sanction the creation with retrospective effect, of a post of Special Government Pleader for Commercial Taxes for the period from 19th September, 1967, upto and inclusive of the date of this order and direct that Thiru M.S. Ramaswami shall be deemed to have held that post during the above said period and he paid for that period the retainer fee and other remuneration for the work actually done by him during that period to which he is eligible. In lieu of prior notice, Thiru M.S. Ramaswami shall in addition be paid an amount representing the retainer fee for six months. After the issue of this order there will be no post for Thiru M.S. Ramaswami to hold. His service as Special Government Pleader are, therefore, terminated, with effect on and from the date of this order.
The contention of the Respondent before the learned Judge which has been reiterated before us, is that the proceedings we have above referred to, showed that Government had created two posts, Special Government Pleader, Housing Board, and Special Government Pleader, Commercial Taxes, that he held both the posts, and that since only the post of Special Government Pleader, Housing was abolished with effect from 18th September, 1967, he continued to hold, the post of Special Government Pleader, Commercial Taxes, and that inasmuch as the Government in the impugned order proceeded on the basis that after 18th September, 1967, there was no post of Special Government Pleader, Commercial Taxes, for him to hold, it was invalid. Alagiriswami, J., accepted this contention. He noticed that actually no second post of a Special Government Pleader for Commercial Taxes was specifically created, but he was of opinion that inasmuch as, the Respondent was, by notification, appointed as Special Government Pleader for Commercial Taxes, without specifying any time limit for the post it must be deemed that such a post had been created. This is the reasoning of the learned Judge:
When the petitioner was appointed Special Government Pleader for the Commercial Taxes Department no time limit was specified for the appointment. The Government did not at the time purport to create any post for any particular period. As I have already stated though the Government did not purport to create any post, by the very fact of the appointment of the petitioner to the post of Special Government Pleader for Commercial Taxes Department, they should be deemed to have created that post; but they had not specified any particular period during which that post was to last. That post would therefore, last till it is specifically abolished The orders issued on 22nd March, 1968, in which they purport to create the post of the Special Government Pleader for Commercial Taxes Department from 19th September, 1967 to 22nd March, 1968, does not have the effect of abolishing the post of special Government Pleader for Commercial Taxes Department. It cannot by implication be deemed to have done so. It did not proceed on that basis. That post should be deemed to continue.
The learned Judge, therefore, held that as a result, the Respondent would be deemed to hold or to have held the office till he has completed the age of 60 and that upto that period, he would be entitled to be paid his retainer at the rate of Rs. 272.73 per mensem.
With respect, we are unable to share the view of Alagirisawmi, J. Power to make an appointment undoubtedly includes the power to create a post, and we do not say that in no circumstance creation of a post can be deemed or inferred. But in the circumstances of this case we are satisfied that there was no intention to create two posts, one that of Special Government Pleader, Housing Board, and the other of special Government Pleader, Commercial Taxes, and appoint the same individual to both the posts. We are inclined to think on a perusal of the related Government orders and proceedings that there was only one post created, viz., Special Government Pleader, Housing and Thiru Viswanathan who had been appointed to that post and also asked to be in charge of Commercial Tax Cases in the High Court having resigned, the Respondent, by the order dated 4th May, 1966 was appointed in that post as Special Government Pleader for Commercial Taxes Department. There is nothing in this order to show that a fresh post was created. The notification of appointment no doubt, stated that the Respondent was appointed as Special Government Pleader for Commercial Taxes Department, but the order pursuant to which the notification was made referred to the circumstances in which the Respondent came to be appointed, and in that context, therefore, it is clear that the Respondent's appointment was in the post which became vacant by the resignation of Thiru R. Viswanathan. The origin of that post, and the duration for which it was created, are known. We are also of the view that when Thiru R. Viswanathan was appointed temporarily as Special Government Pleader, to be in charge of Commercial Tax Cases, this was in addition to his work for the State Housing Board. That this was - -so, was mentioned in G.O.Ms, No. 2807 Revenue, dated 30th November, 1964 There is no reason to suppose that, in the circumstances, Thiru R. Viswanathan was called upon to occupy two - -posts separately created, with one: retainer fee for the Law Officer in both, the posts. We very much desire that in issuing the orders of appointment which we have earlier referred to the Industries - -Department (Housing) and the Revenue Department of Government had been more careful and precise in the language they employed which has led to certain amount of confusion resulting in these, proceedings. In a matter like that, it would be advantageous to, route the orders of different departments finally through one of them, usually, dealing; with Law Officers and their appointments.
(3.) A post means, a position of employment, and as pointed out by the Supreme Court j in State of Assam v. Kanak Chandra : (1968) ILLJ 288 SC , while every post is a situation of employment' it is not every employment that will constitute a post. It is no doubt true that, as again pointed out in that case a post may be created before the appointment, or simultaneously with it. But from the mere fact of appointment in the sense of employment it cannot be inferred, unless circumstances do warrant it that it is equivalent also to creation of a post. Where a situation has been created and filled in, the holder of the post is not normally allowed to hold another substantive post simultaneously, but where it is necessary, he may be put in additional charge of a post until the substantive appointee to that post takes it over. The Service Rules generally do not visualise, and it is not the normal' practice, that the same individual is allowed to hold simultaneously two substantive posts. In this case, the fact that actually no second post was created by the Revenue Department, but being aware of the post Created by the Industries Department (Housing), it made an appointment as Special Government Pleader for Commercial Taxes which in the circumstances, meant merely entrusting an additional work or employment to the holder of the Substantive post, and the further fact that only one retainer was fixed, show, in our opinion that no two posts of Special Government Pleaders were created. It is true that the retainer was apportioned as between the Housing Board and the Commercial Taxes Department, but that is understandable because the Housing Board is a Corporation which bears its own litigation expenses, including a portion of the retainer fee paid t6 the Law Officer; It may also be that initially the post of Special Government Pleader was created for doing the Work of the Housing Board. Nevertheless, it was a Government post and held under the Government. It seems to us that the learned Judge relied too much oh the word "appointed" in the Government Order without at the same time taking the other circumstances we have pointed out, and weighing all of them to see whether one would, be justified to hold that a second post must be deemed to have been created.;