BENI MADHAB PAL CHOUDHURI Vs. STATE OF ASSAM
HIGH COURT OF GAUHATI
Beni Madhab Pal Choudhuri
STATE OF ASSAM
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C. Sanjeeva Row Nayudu, J. -
(1.) THE simple point that falls to be considered in this petition under Article 226 of the Constitution is whether the notice dated 6 -5 -1965, Annexure 'C' to the petition issued by the District and Sessions Judge Cachar Silchar to the Petitioner Sri Beni Madhab Pal Chaaudhuri to show cause why the order of the Petitioners confirmation as Sheristadar Office of the Munsif No (sic) charj should not be cancelled, is valid or not.
(2.) THE Petitioner was selected and appointed as an Upper Division Assistant in the Office of the District and Sessions Judge. Chachar silchar and later confirmed by the order of the, District and Sessions Judge, who is opponent Authority to confirm him in the chain of the vacancy caused by the retirement of Shri Jogesh Chandra Roy with effect from 2 -1 -1962, Vid -Annexure 'G' to the affidavit -in -reply filed by the Petitioner. The Petitioner having thus been confirmed, our attention has not been awn to any provision of law, which entitles the Government to set aside that confirmation. It may be mentioned that the post of the Sheristadar is only an Upper Division post with a special pay, in which the Petitioner was confirmed by Annexure 'G' referred to above, which is dated 21st July, 1964. Mr. Mazumdar, the learned Junior Govt. Advocate, placed reliance on F.R. 31A of the Fundamental Rules, which runs as follows:
F.R. 31 -A. -Notwithstanding the provisions contained in these rules, the pay of Government servant, whose promotion or appointment to a post is found to be or to have been erroneous, shall be regulated in accordance with any general or special orders issued by the Governor in this behalf.
It is clear from the above rule that it makes no reference to an order of erroneous confirmation of the cancellation of such confirmation. The making of an appointment and the making of an order of promotion are matters within the jurisdiction of the appointing authority and the authority vested with the duty of making a promotion, and since no permanent rights are acquired by mere promotion or appointment, any erroneous order passed in regard to these matters might justify interference under the office memorandum dated 16th June 1964 issued by the Joint Secretary to the Government of Assam, Finance Department, Shillong, which is Annexure v. to the affidavit -in -opposition filed on behalf of the Government.
(3.) IT is common knowledge that confirmation gives certain rights to the Government, who is confirmed, the rights being that he cannot be removed from service except on disciplinary grounds or on medical unfitness. Here there is no question of any disciplinary grounds, nor any question of medical unfitness. Such being the case and there being no power under the rules set aside the confirmation of a Government servant, we must hold that the Government has no, such power. It would be most dangerous to assume that such a power exists in the Government, for, then there will be absolutely no certainty to the service of a Government servant. Any such stand on behalf of the Government will certainly be contrary to all recognised principles of Government employment. This because confirmation gives a permanent footing in the service that employees are anxious to get themselves confirmed and in the central Government service there is the system for quasi -permanency in regard to the officers and employees, who have done three years of continuous service.;
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