- (1.) The facts giving rise to this appeal under clause 10 of the Letters Patent against the judgment of a learned Single Judge dismissing the writ petition of the appellant are these.
(2.) The appellant who is an under- Graduate joined the Punjab Co-operative Department as a Clerk on April 2, 1947, and was confirmed as such on December 16, 1952. He was governed by the Punjab Co-operative Subordinate Service Rules, 1936 (hereinafter called the Rules). In 1956, a separate cadre of Co-operative Audit Field Staff was created by the Punjab Government. The hierarchy of officials on the audit side was as below: (i) Audit Officer; (ii) Senior Auditor; (iii) Inspector Audit; (iv) Junior Auditor; (v) Audit Assistant; (vi) Audit Clerk; (vii) Sub-Inspector Audit. The Deputy Registrar Co-operative Societies was appointed as Head of the newly created Department with the designation of Chief Auditor. The existing employees of the Cooperative Department were given an option to either remain in the general line or to go over to the newly created audit field staff. Appellant opted for the latter. He was accordingly posted as an Audit Clerk on May 19, 1957. On July 20, 1960, when he was still working as such, the Government issued an order fixing the cadre and line of promotion of the audit field staff. Copy of the Cooperative Department memorandum approving the scheme is Annexure 'A' to the writ petition. It provided inter alia that 25 per cent, posts of Audit Assistants should be filled by transfer from Audit Clerks who were in the same scale as the Audit Assistant, and those selected for such posting would be eligible for promotion as Junior Auditors like the Audit Assistants, provided : (i) they had eight years' experience in audit; and (ii) they had undergone the prescribed training. By order of the Chief Auditor, dated July 26, 1960, the appellant and some other Audit Clerks were reverted for absorption against their original posts in the general line. All those persons had earlier been detached from the general line for temporary duty to work as Clerks in the offices of the different Senior Auditors. On November 1, 1964, by departmental instructions (Annexure 'D') the requisite experience of eight years for promotion of an Audit Assistant to the post of a Junior Auditor was reduced to four years in case of non-Graduates and to three years in case of Graduates. It was after the amendment of the departmental instructions regarding the qualification for promotion that tha appellant was transferred from the post of an Audit Clerk to that of an Audit Assistant by order, dated April 7, 1966 (Annexure 'E'), with effect from April 1, 1966. He actually took over charge of the post of the Audit Assistant on April 12 in that year. It appears that in or about the middle of 1966, the appellant made an application to the Chief Auditor Co-operative Societies (the Head of his Department) through his immediate superior (the Senior Auditor) for being exempted from undergoing the training prescribed for promotion, as he had already fulfilled the other condition of eligibility, namely, that of four years' experience. The application was recommended by the Senior Auditor. By order, dated July 29, 1966 (Annexure 'F'), the Chief Auditor exempted the appellant from undergoing the prescribed training on the ground that he had acquired considerable practical experience, ability and efficiency in the audit of accounts of various types of Co-operative Societies, Central institutions and of office routine work, and as the appellant had by then, worked as Junior Auditor, Audit Clerk and Audit Assistant for a period of about five years in the audit organisation. On the same date, the Chief Auditor issued the order of appellant's promotion (Annexure 'F-1'), wherein the factum of his previous experience was reiterated, and it was directed that in view of his long experience and ability, he was promoted as Junior Auditor Co-operative Societies, and posted at Ambala, against a vacant post. By order of the Chief Auditor (Annexure 'G'), dated October 28, 1966, the appellant was confirmed as Audit Assistant Co-operative Societies with effect from October 1, 1966. After the reorganisation of the erstwhile composite State of Punjab by the Punjab Reorganisation Act, 1966, the appellant was ultimately allocated by the Central Government to the State of Haryana with effect from November 1, 1966, by the order of the Central Government which was communicated to the appellant in the Chief Auditor's letter, dated October 18, 1968 (Annexure 'J'). In the State of Haryana the appellant was promoted as Inspector Audit by the Chief Auditor's office order, dated February 10, 1970 (Annexure H'). After such smooth- sailing in his service career for about 23 years, the appellant was suddenly served with notice of the Chief Auditor, dated October 20, 1971 (Annexure 'K'), asking him to show cause why he should not be deconfirmed as Audit Assistant and be reverted to the post of Audit Clerk (the post of Audit Assistant had by then been redesignated as Audit Clerk). It was made out in the notice that it appeared that exemption from departmental training had been given to the appellant in order to give him uncalled for promotion to the post of Junior Auditor as the exemption order and the order of promotion were issued on the same day. The grounds on which the appellant was sought to be reverted three steps below the position held by him at that time, and was sought to be deconfirmed even as an Audit Assistant, were disclosed in the show-cause notice in the following words: "1. You were appointed as Audit Assistant with effect from 12-4-1966 although you had not completed the required probation period vet you were confirmed against this post with effect from 1-10-1966, superseding Sarvshri Ram Singh Rao, Mukand Lal and Hari Charan etc. who were senior to you as Audit Assistants. 2. According to departmental instructions, it was obligatory for you to have gone through departmental training (S. Is Training) to work as Audit Assistant, but you were exempted from this training on 29-7-1966, by the then Chief Auditor which was against departmental instructions." The appellant submitted his detailed reply (Annexure 'L'), dated November 16, 1971, in response to the show-cause notice, wherein all the relevant facts were set out, and it was prayed that the show-cause notice should be withdrawn. The appellant's explanation did not find favour with the Chief Auditor, who by his order, dated August 29, 1972 (Annexure 'M'), withdrew the order of confirmation granted to the appellant with effect from October 1, 1966, as Audit Assistant, and further held that his subsequent promotion to the post of Junior Auditor/Inspector Audit having been made as a result of his confirmation as Audit Assistant in utter disregard of the departmental instructions, he was reverted from the post of Inspector Audit to that of a Clerk and appointed as such against a vacant post. This order of the Chief Auditor,. Haryana, dated August 29, 1972, was impugned in Civil Writ Petition 3134 of 1972, dated September 16, 1972. The petition was contested by the respondents, that is the State of Haryana and. the Chief Auditor. The learned Single Judge who heard the petition dismissed the same by his order, dated 3-4-1973, on the ground that the counsel for the appellant had not been able to point out to the learned Judge any rule under which the instructions with regard to the undergoing of departmental training could be relaxed by the predecessor-in-office of respondent No. 2, and that the order of confirmation of the appellant was passed by mistake as he had been confirmed in disregard of the departmental instructions which were in force at the time the exemption was granted.
(3.) The learned counsel for the respondents has stated that the Rules did not apply to the appellant, that no separate rules had been made for the audit staff, and that the appellant's Department was being governed in the absence of any rules by departmental instructions issued from time to time. If this is so, it is still better for the appellant, as in the absence of any statutory rules, the conditions of service of a Government servant are determined by departmental instructions and orders issued by the competent authorities from time to time. The Chiei Auditor was such an authority for the appellant. The tenor of the show-cause notice (Annexure 'K'), the relevant part of which has been reproduced verbatim, above, shows that the impugned order was passed against the appellant on the assumption that there was some rule which required the appellant to undergo some minimum period of training before he could be confirmed, and in the departmental instructions there was some express prohibition from granting exemption from departmental training to any one. On the admitted facts of this case both the assumptions were misconceived. No rule or departmental instruction has been referred to in any of the departmental orders which required the appellant to undergo any period of probation as Audit Assistant before he could be confirmed as such. The learned counsel for the respondents has not been able to show any such rule. In fact he conceded that there was no such rule. Secondly, the departmental instructions Annexure 'A' as modified by Annexure 'D' did not contain any prohibition against the grant of exemption from departmental training. Thirdly, it is established from documentary evidence placed by the appellant on the record of this case that there was a well established longstanding practice for grant of such exemption to suitable persons in the appellant's Department. Annexure F.2, dated June 13, 1961 shows that the Chief Auditor, Punjab expressly granted exemption to Joginder Mohan and Manohar Lal, Audit Assistants, who had been working continuously in the Co-operative Department for many years on account of their having acquired practical experience, ability and efficiency in the work of the co-operative societies of various types. The grounds of exemption granted to them are couched in exactly the same language in which the order granting exemption to the appellant has been made out. It is significant that at the end of the order Annexure F-2, it has been stated that the exemption was being given by virtue of Government memo No. 8017-Co-op-IV-60/4097, dated 20-7-1960, whereby the training is to be prescribed by me in my own discretion." The authority for the grant of exemption referred to in Annexure F-2 is no other than the departmental instructions Annexure 'A'. The relevant part of Annexure 'A' is in the following words: "Provided they have eight years' experience in audit and have undergone the prescribed training." The Chief Auditor has made it clear in his order, dated June 13, 1961 (Annexure F-2), that the training had to be prescribed by himself. This the Chief Auditor has admittedly been doing since the very inception of this separate Department. This shows that not only was there no prohibition against the grant of exemption from training, but in view of the fact that the training had to be prescribed by the Chief Auditor himself, he was fully competent to grant exemption from training to any employee. Similarly even after the passing of the impugned order the successor of the then Chief Auditor has by his order, dated May 17, 1973 (Annexure 'Y'), granted exemption to Slier Singh, Sub-Inspector (Audit), Co-operative Societies, (who could not qualify in the departmental training) in view of the length of his service, experience and his service record. The genuineness of these two documents has not been doubted or questioned by the respondents. The only ground on which the impugned order has been passed against the appellant has, therefore, been found to be factually non-existent. There is no other ground on which the impugned order can possibly be supported. When all the grounds on which an order of this type is based are found to be non-existent and the State is not able to support the order on any other valid and legal ground, the Court must quash the order ex debito justitiae. In the alternative if the rules could be said to be applicable to the appellant's case, then Rule 5 of Part II of the Rules expressly provides that the training which is to be undergone and the examinations, if any, which have to be passed for being eligible for promotion, have to be such as the Registrar may, prescribe, provided that the Registrar may, for special reasons to be recorded in writing exempt any candidate from passing the examinations. The Chief Auditor enjoys all the powers of the Registrar for dealing with the members of his establishment. From whatever angle, therefore, the case is looked at, the order of the Chief Auditor deconfirming the appellant and reverting him by three steps suffers from errors of law apparent on its face, and appears to us to be wholly uncalled for.;