LALA BHAWANI SAHAI Vs. STATE OF RAJAS THAN
LAWS(RAJ)-1955-4-1
HIGH COURT OF RAJASTHAN
Decided on April 05,1955

LALA BHAWANI SAHAI Appellant
VERSUS
STATE OF RAJASTHAN Respondents

JUDGEMENT

Bapna, J. - (1.) THIS is a petition under Art.226 of the Constitution of India.
(2.) THE petitioner was holding the post of Commissioner of Customs on the 31st of December, 1948, as an employee of the then Jodhpur Government, having put in about 26 years' service. It is alleged that he had an excellent record of service, but to the great surprise his services were terminated by the order of the then Pradhan Mantri of Jodhpur dated 31st December, 1948, without even an explanation being called from him, nor was he supplied with any grounds which led to the termination of his services. It was further alleged that the petitioner preferred an appeal to His Highness the Maharaja of Jodhpur under rule 36 of the revised Ijlas-I-Khas Rules published in Jodhpur Government Gazette dated 22nd December, 1945, on the 29th of January, 1949, which remained undecided till the formation of Rajasthan, and should have been decided by the Government of Rajasthan under sec. 4 of the Rajasthan Appeals and Petitions (Discontinuance) Ordinance, 1949, (No. XL of 1949) but had not yet been decided. It was alleged that at one stage an Hon'ble Minister in charge of the Customs portfolio had expressed an opinion in favour of the petitioner, and the Public Service Commission of Rajasthan had also made a recommendation in his favour, but the Government did not pass any order on his appeal as yet. It was, therefore, prayed that the State of Rajasthan be directed to decide the appeal of the petitioner pending before them. In the alternative it was prayed that this Court may direct the State to reinstate the petitioner, and pay all the emoluments due to him from 1st January, 1949. It was alleged that the petitioner was a head of a major department in the then Jodhpur State, and could not be removed from service without the approval of His Highness the Maharaja of Jodhpur, and that no such approval had been obtained. It was pleaded on behalf of the State that the petitioner was removed from service by a competent authority, and that no appeal lay against that order, and that the representation made by the petitioner had been disposed of by the Government, and intimation of the decision was communicated to the petitioner on 10th/14th November, 1951. It was contended that the Rajasthan Appeals and Petitions (Discontinuance) Ordinance, 1949, was not applicable to a representation of the nature presented by the petitioner. The petitioner referred to his order of appointment as Customs Superintendent, which designation seems to have been subsequently changed to that of Customs Commissioner, and contended that he had been appointed by His Highness the Maharaja of Jodhpur, and no authority subordinate to the Maharaja could order his removal. The relevant portion of the order, dated 31st March. 1937, published in the Jodhpur Government Gazette, Vol. 72, No. 32, dated April 3, 1937, is as follows : - "His Highness the Maharaja Sahib Bahadur has, in C. R. No. 24 dated 19th March, 1937 been pleased to order that with effect from 1st April 1937 : - (1) Mr. Bhawani Sahai, B.A., LL.B. Home Secretary, be appointed Customs Superintendent on Rs. 400/- p. m. in the grade of Rs. 200-25-650 on probation for one year, vice Mr. Phiroze Shah, who would retire on the 31st March, 1937 Mr. Bhawani Sahai will retain his substantive post of Hakim in the selection grade. The relevant portion of the order of removal conveyed to the petitioner, Ex. C, is as under : - "His Highness the Maharaja Sahib Bahadur has been pleased to order (vide Chief Secretary's letter No. 2881 dated 31.12.48) that the services of Lala Bhawani Sahai. Commissioner of Customs, be terminated with effect from 1st January, 1949...... Sd. Jainarain Vyas, Pradhan Mantri" The relevant portion of the Chief Secretary's letter No. 2881 dated 31.12.48, Ex. F., is as follows : - "I am directed to inform you that His Highness the Maharaja Sahib Bahadur has been pleased to order that the services of Lala Bhawani Sahai, Commissioner of Customs, be terminated with effect from 1st January, 1949 .........." It is contended on behalf of the petitioner that this was only a fake letter, as His Highness the Maharaja was not even at Jodhpur during the period from 7th December, 1948, to 17th January, 1949. Even assuming that His Highness the Maharaja of Jodhpur was not at his headquarters, it does not mean that he could not pass the order purporting to have been passed by him in the present age of telephone, telegraph, and wireless. Emphasis was laid by learned counsel for the petitioner that no order purporting to have been signed by His Highness the Maharaja of Jodhpur could be produced by the State to show that the Chief Secretary's letter represented a correct state of affairs. In the first place, the communication made by the Chief Secretary to the Government of Jodhpur is itself a proof of the particular order being made by His Highness, In the second place, prior to this there was a Council Resolution dated 29th December, 1948, Ex A., the relevant portion whereof is as under : - "Resolution No. 71 Resolved that the services of Lala Bhawani Sahai. Commissioner of Customs be terminated with effect from 1st January, 1949........" and if the Constitution of the then Government of Jodhpur be taken into consideration the Council itself was authorised to pass an order of this nature in the name of His Highness. The Maharaja promulgated an Act known as the Government of Jodhpur Act, 1947, sec. 8 where of is as follows - "Subject always to the provisions of this Act and subject also to such rules and allocation of portfolios and such other directions as His Highness may make or give from time to time by general or special orders in that the behalf, the superintendence, direction and control of the civil administration and government of the State shall be vested in the Council." The marginal note of this section is "Vesting of the civil administration in the Council" The other relevant provisions in this Act on which reliance was placed by learned counsel for the petitioner are sec. 6 and 7, which are as follows: - "6. All sovereign powers, legislative, executive and judicial, and sovereign authority and jurisdiction appertaining or incidental to the State and the Government are hereby declared to be and to have always been possessed and retained and exercisable by. His Highness the Maharaja for the benefit and welfare of the people and nothing, except in so far as in this Act provided, shall affect or be deemed to have affected the sovereign right and prerogative of His Highness to make laws and issue proclamations, orders and ordinances by virtue of all such sovereign authority. 7. There shall be a Council of Ministers consisting of the Prime Minister and such other Ministers as His Highness the Maharaja may determine from time to time so aid and advise His Highness in the Government of the State " It may be mentioned that after the promulgation of the Government of Jodhpur Act, 1947, certain amendments were made so as to introduce "Diwan" as a member of the Council and vest the civil administration in the Diwan and the Council. But it was not contended that there was any flaw in the Council Resolution on that score. It was argued that under sec. 6, the legislative, executive and judicial powers were declared to be vested in His Highness the Maharaja, and the Council was only an advisory body as provided by sec. 7 and the subsequent section, which declared the Council to be vested with the superintendence, direction and control of the civil administration and government of the State, was only a hollow declaration devoid of any real grant of power to the Council, for it could only aid and advise His Highness in the Government of the State according to sec. 7, and the power of Government vested was declared to be vested in His Highness under section 6. Such an interpretation nullifies the express provisions of sec. 8. One of the principles of construction of statues is that the different provisions of a statute should be harmoniously construed, and any construction which nullifies any provision of the statute has to be avoided. On the aforesaid principle, the true construction of the sections mentioned above would be that while sec.6 purports to declare that His Highness the Maharaja of Jodhpur was the ultimate source of legislative, executive and judicial power, and notwithstanding the delegation of powers under the Act still retained the residuary power of sovereignty and various prerogatives mentioned in that section, sec. 7 provided for a Council of Ministers to aid and advise him in the government of the State, he had delegated his power under sec 8, so far as civil administration and government of the State was concerned, to his Council, This is confirmed by sec. 14, which runs as follows: - "(1) All executive action except such as may be taken by His Highness the Maharaja personally under his prerogative or authority as the Sovereign of the State shall be expressed to be taken in the name of the Government of Jodhpur. (2) Orders and other instruments made and executed in the name of the Government of His Highness the Maharaja of Jodhpur shall be authenticated in such manner as may be prescribed by rules to be made by the Council of Ministers and the validity of an order of instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by His Highness or the Government of Jodhpur as the case may be." Under the aforesaid section, therefore, executive actions were to be expressed to be taken in the name of the Government of Jodhpur, and orders made in the name of the Government of Jodhpur, when properly authenticated, were not to be called in question On the ground that they were not made or executed by His Highness or the Government of Jodhpur. The Council was thus authorised to issue orders in the name of the Government of Jodhpur, which under sec. 6 meant His Highness the Maharaja of Jodhpur, and such orders, when properly authenticated, could not be called in question. In the present case, it was authenticated by the Chief Secretary that His Highness had issued a particulars order, and, therefore, under sec. 14 (2) it could not be called in question on ground that the said order had not been executed by His Highness, who in theory carried on the Government of Jodhpur. It may be that His Highness the Maharaja could override any decision of the Council in the exercise of the sovereign powers under sec. 6 or if the Council decided to refer any question to His Highness under sec. 7 ; but the power of the Government if exercised by the Council under sec. 8 could be so exercised in the name of the Government of Jodhpur, meaning thereby His Highness the Maharaja of Jodhpur. In that state of law, it could not be questioned by the petitioner that the order purporting to have been conveyed by the Chief Secretary did not emanate from the Maharaja of Jodhpur. It was next contended that the petitioner had filed an appeal against the order of termination of his services, conveyed to him by the Pradhan Mantri of the then Jodhpur State to His Highness the Maharaja of Jodhpur on 29th January, 1949, and that appeal was required to be decided by the United State of Rajasthan under the provisions of sec. 4 of the Rajasthan Appeals and Petitions (Discontinuance) Ordinance, 1949. The appeal was said to have been filed in accordance with rule 36 of the Ijlas-i-Khas Rules promulgated by his Highness the Maharaja Sahib Bahadur by Council Resolution No. 2 of 8th November, 1945. That rule is as follows - "An appeal shall lie to Ijlas-i-Khas against an original or appellate order of the Minister-in-Charge removing or dismissing at State servant, drawing a salary of Rs. 45/- or over per month." Counsel for the petitioner urged that the order Ex. C, which was conveyed to him was by the Pradhan Mantri, who was the then Minister-in-Charge of the Custom Department. This, however, is not a correct view of the matter. The Pradhan Mantri only purported to convey the order of His Highness the Maharaja, and, therefore, the order was not by any Minister but by the Maharaja, and rule 36 did not contemplate an appeal against such an order. If it be taken that the Maharaja really never came in the picture but the order was according to the decision of the Council, Ex. A. still it would not come under rule 36 for again the order was not by any Minister-in-charge of a department. The petitioner himself had entertained doubts about his having any right of appeal for in his representation of 29th January, 1949, a copy whereof is on the record, he said in paragraph 9 - "If no appeal is considered, this may be treated as review petition or a petition under sec. 3 of the Ijlasa-i-Khas Rules." It was conceded that a review was not provided under the Ijlas-i-Khas Rules, but stress was laid on rule 3, under which the petitioner was said to have a right to present a petition, and whether the representation made by him was to be considered as an appeal or petition, the provisions of the Ordinance No. XL of 1949 were said to be equally applicable. Now, Rule 3 is as follows - "Nothing contained in these Rules shall be deemed to bar the full and unqualified exercise of His Highness' plea sure in receiving appeals and petitions and in dealing with them in whatsoever a manner he deems fit." This rule obviously did not confer any right upon any person to present any appeal or petition to His Highness, but purported to say that the subsequent rules while conferring certain rights on litigants and persons to prefer petitions or appeals to His Highness did not limit the sovereign right of His Highness to receive at his pleasure any appeal or petition, and to pass any order which he may deem fit. The rule only reiterated the notion of the divine right of a sovereign to do anything what he liked in any matter which may he brought to his notice. But such an application would not be one permitted by law, for the rule virtually permitted the Maharaja to pass any order at his pleasure and not according to law. Whether this was a satisfactory state of affairs or not is not for this Court to record an opinion, but what must be emphasised is that applications or petitions which could be accepted by his Highness at his pleasure were not applications or appeals which could be presented under any law. The Rajasthan Appeals and Petitions (Discontinuance) Ordinance, 1949, only dealt with applications or appeals which could be preferred under any law to ruler of the State, and which having remained undisposed of were to be disposed of by the authorities mentioned in the Ordinance. The preamble of the Ordinance says : - "Whereas, by the laws of some of the covenanting States, appeals, revisions, references and petitions in respect of certain matters lie to the Ruler of those States; And whereas it is expedient to repeal such laws and to discontinue the future presentation of such appeals, revisions, references and petitions; And whereas it is further expedient to Provide for the disposal of such of them as have already been preferred, brought, made or presented; Now, therefore, in exercise of the power conferred by paragraph (3) of Art. X of the Covenant, His Highness the Raj Pramukh is pleased to make and promulgate the following Ordinance : - " Sec. 4 of the Ordinance, which was relied upon by learned counsel for the petitioner is as follows : - "(1) Where any appeals, revisions, references or Petitions of the nature described in sec. 3 have been preferred, brought, made or presented before, and are pending at, the commencement of this Ordinance, they shall be heard, determined and disposed of - (a) if they relate to judicial matters, by a Special Court to be constituted by the Raj Pramukh by notification in the Rajasthan Gazette. (b) if they relate to judicial revenue matters, by Special Board to be constituted by the Raj Pramukh by a like notification, and (c) in other cases, by the Government of the United State of Rajasthan." The rest of the section is not relevant. Learned counsel contended that his petition came under clause (c) and was required to be heard, determined and disposed of by the Government of the United State of Rajasthan. It was not all petitions that were presented to the rulers which were required to be so dealt with, but only those of the nature described in sec. 3. Sec. 3 laid down: - "Notwithstanding any thing contained in the Rajasthan Administration Ordinance, 1949, or in any law for the time being in force in any covenanting State, no appeal, revision, reference or petition, which according to such law lies to the Ruler and is preferred, brought, made or presented to the Ruler or to any authority known by the designation of Ijlas-i-khas or Judicial Committee or by any other designation shall so lie or be so preferred, brought, made or presented, after the commencement of this Ordinance : - (i) in judicial matters, from or against any decision of a High Court, or (ii) in revenue matters, from for against any decision of a Board, or (iii) in other matters from or against any decision of the Government, even though the decision may have been passed before the commencement of the Ordinance : Provided that nothing in this section shall be deemed to affect any law for the time being in force - (a) as respects appeals, references or petitions in matters of succession to or, resumption or continuance of, Jagirs or other grants and in other allied matters, or (b) as respects appeals to a High Court from or against its own decision in cases tried or heard by it in the exercise of its ordinary or extra-ordinary original jurisdiction, whether civil or criminal, or (c) as respects the power of the Government to entertain and dispose of appeals, revisions, references and petitions, in non-judicial revenue and other matters, or (d) as respect the doing of anything which by such law or otherwise the Raj Pramukh is authorised to do in the exercise of his inherent and prerogative powers." The petitions, which Were prohibited or barred by this section were Only those which lay to the ruler according to some law. As discussed above, a petition invoking the pleasure of His Highness was not one according to law. Learned counsel for petitioner contended that clause (d) of the proviso permitted petitions otherwise than in accordance with law. This contention is not correct, for the proviso starts with the words "that nothing it this section shall be deemed to affect any law for the time being in force", and governs clause (d) as well. The representation made on 29th January, 1949, was, therefore, not one which was required to be heard, determined and disposed of according to sec. 4 of the Rajasthan Appeals and petitions (Discontinuance) Ordinance, 1949. It may be pointed out that the allegation of the petitioner that his representation has remained undisposed of is not correct, Ex.E is an order of the Government of Rajasthan in reply to the representation dated 3rd May, 1949, and this communication purports to modify the order of the 31st December. 1948, so as to permit the petitioner to draw one month's notice pay, A copy of the representation dated 3.5.49 (Ex.G) has been filed on behalf of the respondent, and paragraphs 2nd and 3rd thereof contain a prayer for an early decision of his appeal. These paragraphs are as under - "I had applied for a copy of the said order to enable me to prefer an appeal, but the copy has neither been granted nor refused uptil now. As the delay was causing unnecessary loss to me, I had to submit an appeal to the Legal Advisor (Ijlas-i-khas) Jodhpur without a copy and the appeal has been lying pending with him. "Since Jodhpur State has now been merged in the United States of Rajasthan, the appeal has now to be taken up by the Rajasthan Government. I, therefore, pray that my appeal and the papers connected with it may be called for and an early decision made after giving mean opportunity of being heard either in person or through an Advocate. For your perusal, I attach herewith a copy of the memorandum of appeal and a copy of the order conveyed to me, terminating my services." The reply of the Government Ex.E did not in terms refer to the decision of his representation of 29th January, 1949, but made reference only to the representation of 3rd May, 1949, but that did not make any difference for the representation of the 3rd May, 1949 contained a prayer for a decision of his appeal (dated 29th January, 1949), and the reply purported to accept one of his grounds of appeal, for he said in para 8 of his alleged appeal, of 29th January, 1949, that - "The prejudice against the appellant is apparent from the very fact that the usual one month's notice..............have been denied to the appellant." The petitioner seems to have filed are view of the order of 12th April, 1951, and the matter at some stage also seems to have been referred to the Public Service Commission, for a letter Ex. D. was addressed by the Chief Secretary, to the Secretary Public ServiceCommission,on 10th/14th November, 1951, that - "Government have given further consideration to this matter and are of the opinion that the question of Shri Bhawani Sahai's appeal against the termination of his services in the Customs Department of the covenanting State of Jodhpur having already been decided, should not be reopened." and a copy of this letter was forwarded to the petitions with reference to his review petition dated 29th April, 1951. Learned counsel for the petitioner, therefore, ultimately contended that although some sort of disposal of his representation had been made, it had not been done in accordance with the provisions of sec. 4 of the Ordinance No. XL of 1949, which required the petition to be heard before its determination and disposal. It is not necessary to express an opinion whether every appeal, revision, reference or petition to which sec. 4 was applicable, required a hearing before determination or disposal, for as discussed earlier, the petitioner's representation of 29th January, 1949, was not one contemplated by sec.4 of the Ordinance. In that view of the matter, the petitioner's contention for granting a hearing does not at all arise, It may be pointed out that the order out of which this petition has arisen was passed prior to the enforcement of the Constitution, and the safeguards afforded to civil servants under Art. 311 of the Constitution were not available to the civil servants of the Jodhpur State. Learned counsel for the petitioner drew our attention to General Circulars issued by the then Jodhpur Government on 25th December, 1948, rule 4 whereof provided that: - "No order of reduction in rank, removal or dismissal shall be passed (other than an order based on facts which have led to conviction in a criminal (court) unless the Government servant concerned has been informed in writing of the order which it is proposed to pass and the grounds on which it is proposed to pass it and has been afforded a reasonable opportunity of making any representation that he may desire to make and such representation has been taken into consideration before the order is passed." Certain exceptions to this rule are mentioned which are not relevant in this case. It is urged by learned counsel for the petitioner that the procedure mentioned in this rule was not followed in this case. The Government in its reply said that there was some complaint against the petitioner, but it was conceded that the procedure mentioned in the rule had not been followed in this case. The position is somewhat unfortunate, but these Rules have not the force of law, as, according to the foreword, they were issued by the Diwan for the guidance of the State Officers and were not of a nature which could be held binding on the Government. As this is a pre Constitution matter, this court is unable to afford any assistance to the petitioner. The petition is accordingly dismissed but there will be no order as to costs.;


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