SHINGHAL, J. - (1.) MOHAN Lal has brought this writ petition under article 226 of the Constitution against the State of Rajasthan, with the following allegations. The petitioner was serving as Naib Tehsildar in the Rajasthan State in July, 1953, when he was suspended by an order of the Board of Revenue dated July 14, 1953. Six charges were framed against him, which were enquired into by Collector, Udaipur. On September 21, 1954, the Board of Revenue passed an order reducing the petitioner to the post of Land Records Inspector, with the further stipulation that he would not be given any chance to officiate in a higher capacity for a period of three years and would receive only half his salary (with the usual dearness allowance) for the period of suspension. He filed an appeal before the respondent State on October 4, 1954. That was kept pending for about six years and it was as late as May 13, 1960, that the petitioner received a letter from the Registrar of the Board of Revenue forwarding a notice (Ex. 4) from the respondent informing him that the Government proposed "to enhance the penalty. . . . . . . . . by invoking provision of clause (i) of sub-rule (2) of rule 30 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958" and to dismiss him from Government service. The petitioner was called upon to make his representation, if any, against the proposed enhancement. He submitted his reply (Ex. 6) pointing out that the Board of Revenue had already relaxed its earlier order dated September 21, 1954, by promoting him as Sadar Quanun go on July 9, 1956 and, later, as Naib Tehsildar by the order dated May 11, 1957. He was even allowed to officiate as Tehsildar at Vallabhnagar. Accordingly, he prayed that as his appeal had become infru-ctuous on account of his subsequent promotions, he may be allowed to withdraw it. However, the State Government ultimately dismissed the petitioner by its order (Ex. 8) dated December 5, 1960. With these allegations, the petitioner has challenged the order of his dismissal, mainly on the ground that his appeal before the Government should necessarily have been disposed of in accordance with the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950 (here-in-after referred to as the Rules of 1950) under which the appellate authority had no power to enhance the penalty. In other words, the petitioner has contended that the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the Rules of 1958), which had come into force in the meantime, could not apply retrospectively to an order which had been passed more than four years ago. Besides, the petitioner has contended that he was not given a personal hearing by the respondent, that an extraneous ground about the realisation of subscription for the construction of 'sarai' has been taken into consideration in passing the order of dismissal, that some statements (which had not been recorded at the departmental enquiry) have been read in evidence, that no specific findings have been given on the charges which had been framed against him, and that the findings against him are not borne out by the evidence on record. On these grounds, it has been alleged that the order of dismissal is prejudicial. It has therefore been prayed that the orders of the Board of Revenue and the State Government should be quashed and that a writ of mandamus should be issued against the respondent directing it to re-instate the petitioner to his original post.
(2.) IN its reply, the respondent has admitted the narration of the facts mentioned above. For the delay in the disposal of the appeal, it has been contended that the record had to be obtained from different offices, which took time. As regards punishment, the reply is that the Government took the view that "looking to the facts and circumstances of the case, the petitioner has been awarded a lenient punishment. . . . . . . . The Government was also of the view that in such a case a deterrent punishment should have been awarded by the learned Members of the Revenue Board and in these circumstances it thought fit that the penalty imposed by the Revenue Board and the petitioner should be enhanced". It has not been denied that the petitioner's subsequent work was found to be satisfactory and that he had been promoted after his reversion as Land Records INspector. Further, it has been admitted that the Rules of 1950 were repealed by the Rules of 1958 and that the petitioner's appeal was disposed of under the later Rules. The respondent has challenged the contention that the Rules of 1958 could not be applied to the petitioner's case and has pleaded that the Rules are of a procedural nature and could be applied to any pending case. The other contentions of the petitioner regarding the propriety and the legality of the order of dismissal has also been denied. The only point which has been urged by the learned counsel for the petitioner before us is that the petitioner's pending appeal dated October 4, 1954, against the order of the Board of Revenue dated September 21, 1954, could not have been considered and disposed of in accordance with the provisions of the Rules of 1958 because those Rules came into force much later and could not take away the substantive right which had vested in the petitioner to have his appeal decided in accordance with the Rules of 1950 which were admittedly in force when the appeal was preferred. Thus, it has been argued that sub-rule (3) of rule 35 of the Rules of 1958 could not be invoked in order to enhance the punishment. The learned counsel has placed reliance on Garikapati Veeraya Vs. Subbish Choudhary (1 ). On the other band, learned Assistant Government Advocate has argued that the two Rules in question are merely procedural and were retrospective in operation and that, in any case, sub-rule (3) of rule 35 of the Rules of 1958 expressly provides chat a pending appeal shall be considered and decided in accordance with those Rules and so there was an express authority from the legislature to give the Rules a retrospective effect. As the provisions contained in the two sets of Rules referred to above will come up for consideration in this case, it may be pointed out that the Rules of 1950 were published in the State Gazette on November 20, 1950, while the Rules of 1958 were so published on May 7, 1959. The relevant provisions relating to appeals in the Rules of 1950 were as follows: - "18. An appeal shall lie to the next higher authority imposing any of the punishments specified in rule 15. Where an appeal lies to the Government under this rule, the decision shall be taken after consultation with the Public Services Commission. 19. Except in respect of the Services in Class IV, a final appeal shall lie to Government to hear the appeal doing so, each authority shall against the order of the appellate authority forward with a covering letter the material neces-imposing the penalty specified in clauses (vi) and sary for the decision of the appeal as available (vii) of rule 15 and the Government shall consult the Public Services Commission before passing orders thereon. 20. . . . . . . . . . . . . . . . . . . . . . . . . 21. Every person preferring an appeal shall do so through the proper channel and within of the appeal shall withhold it". three months of the passing of the order. 22. . . . . . . . . . . . . . . . . . . . . . . . . 23. An appeal shall be liable to summary dismissal if it contains any disrespectful or improper language. 24. The Authority to whom the appeal is presented shall forward it to the next authority and so on until it reaches the authority competent in its office. It shall make no comments on the merits of the appeal except to point out whether any disrespectful or improper language has been used by the appellant. 25. No authority not competent to dispose The corresponding provisions in the Rules of 1958 are as follows: "30. Consideration of Appeals.- (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of rule 1 3 and having regard to the circumstances of the case the order of suspension is justified or not and confirm or revoke the order accordingly. (2) In the case of an appeal against an order imposing any of the penalties specified in R. 14, the appellate authority shall consider - (a) whether the procedure prescribed in these rule has been complied with and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice ; (b) whether the facts on which the order was passed have been established ; (c) whether the facts established afford sufficient justification for making an order;and (d) whether the penalty imposed is excessive, adequate or inadequate ; and after consultation with the Commission, if such consultation is necessary in the case, pass order - (i) setting aside, reducting, confirming or enhancing the penalty ; or (ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case : Provided that - (i) the appellate authority shall not impose any enhanced penalty which neither such authority nor the authority which made the order appealed against is competent in the case to impose ; (ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against Such enhanced penalty and (iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (iv) to (vii) of rule 14 and an inquiry under r. 16 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 12, itself hold inquiry or direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry and after giving the appellant an opportunity of making any representation which he may wish to make against such penalty, pass such orders as it may deem fit. 31. . . . . . . . . . . . . . . . . . . . . . . . . " Further, there is the following rule relating to repeal and savings in the Rules of 1058 : - "35 Repeal and Savings - (1) The Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950, and any notification issued and orders made under any such rules to the extent to which they apply to the person to whom these Rules apply and in so far as they relate to classification of Civil Services specified in Schedule or confer powers to make appointments, impose penalties or entertain appeals are hereby repealed : Provided that - (a) such repeal shall not affect the previous operation of the said Rules, notifications and orders or anything done or any action taken thereunder ; (b) any proceedings under the said rules, notification, or orders pending at the commencement of these rules shall be continued and disposed of as may be, in accordance with the provisions of these rules. (2) Nothing in these rules shall operate to deprive any person to whom these rules apply of any right of appeal which had accrued to him under the rules, notifications or orders repealed by sub-rule (l) in respect of any order passed before the commencement of these rules. (3) An appeal pending at or preferred after the commencement of these rules against an order made before such commencement shall be passed, in accordance with these rules. " Thus, the point for decision is whether sub-rule (3) of rule 35 of the Rules of the 1958 had the effect of authorising the State Government to enhance the penalty in this case although the appeal was filed when Rules of 1950 were in force. It may be mentioned at the outset that it is a well settled proposition of law that a right of appeal is not a mere matter of procedure but is a substantive right and, as has been laid down by their lordships of the Supreme Court in Garikapati Vs. Subbish Choudhary (1) "the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or' proceeding and not by the law that prevails at the date of its decision or at the date of the 'filing of the appeal". Their Lordships have further laid down that "this vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise". It is therefore obvious that the, petitioner, had a substantive and a vested right to have his appeal governed by the Rules of 1950, unless it could be held that this right had been taken away by the Rules of 1958. This brings us to the consideration of sub-rule (3) of rule 35 of the Rules of 1958. While examining that sub-rule, it appeared that its wordings were not quite suitable and learned Government Advocate, who appeared at the earlier hearings, offered to "produce the original Rules. That has been done, and learned Assistant Government Advocate has placed before us an amendment dated June 19, 1961 made in sub-rule (3) of rule 35 of the Rules of 1958, which is to the following effect : - "in exercise of the powers conferred by proviso to Art. 309 of the Constitution of India, the Governor has been pleased to order that the, following amendment be made in sub-rule (3) of rule 35 of the Rajasthan Civil Services (Classification. Control & Appeal) Rules, 1958, viz: - AMENDMENT The words "considered and orders thereon shall be inserted between "shall be" and "passed" occurring in sub-rule (3) of rule 35 of the said Rules. " On the strength of this amendment, learned Assistant Government Advocate has made a request that we should incorporate the additional words in the Rules of 1958 for the purpose of the instant case and hold that since the legislature has given retrospective effect to the Rules of 1,958, in so far as the consideration and the passing of orders on a pending appeal is concerned, there is nothing wrong in the impugned appellate order enhancing the petitioner's penalty. The learned counsel for the petitioner has stoutly opposed this request and has argued that (i) the amendment dated June 19. 1961 cannot be given retrospective effect, and (ii) it is not open to the court to supply the omission when the case can be disposed of without doing so. The amendment which has been made in sub-rule (3) of rule 35 of the Rules of 1958, on June 19, 1961, is prospective in operation, and there is n6 question of giving it a retrospective effect. We are also not persuaded that we can fill the omission in the sub-rule by adding the numerous words which have been incorporated in it by the subsequent amendment of June 19, 1961. Rule 30 of the Rules of 1948 specifically vests the appellate authority with the power of enhancing the penality and that power is, therefore, of a penal nature and must be, strictly construed. As has been stated in Maxwell on The Interpretation of Statutes tenth edition, p. 290) "an omission which the context shows with reasonable certainly to have been unintended may be supplied, at least in enactments which are construed beneficially, as distinguished from strictly. A casus omissus is not to be supplied in penal enactments even though it may save the person concerned from indictment. Besides, as has been, said in Hough Vs. Windus 1884-12 quo 284 at p. 237 "statutes should be interpreted, if possible, so as to respect vested right". We would not, therefore, read all the words which have been incorporated in sub-rule (3) of rule 35 of the Rules of 1958 by the amendment of 1961, for the disposal of this petition. It has now to be seen whether it is possible to interpret Rule 35 (3) of the Rules of 1958, as it stood, before the amendment, without doing violence to its language in the manner suggested by learned Assistant Government Advocate. According to him, we should substitute the words "considered and decided" for the word "passed" in the sub-rule. There can be other substitutes also and the learned counsel for the petitioner has suggested that the word "heard" would be more appropriate for substitution. Since there is no amount of certainty as, to what was intended by the rule making authority, it would be travelling in the realms of conjecture to make an interpolation to the dis-advantage of the petitioner. The obvious purport of the sub-rule is to provide for the disposal of a pending appeal in accordance with the procedure prescribed in the Rules of 1958, and it would be outdoing the powers of this Court to read any further meaning in it. The sub-rule, without the amendment, is no doubt somewhat laconic, but it would be a harmonious construction to read it in the manner suggested above, to save a substantive and a vested right. There is yet another reason for our refusing to make the interpolation suggested by learned Assistant Government Advocate. The Rules of 1950 simply gave a right of appeal, but did not define the powers of the appellate authority. The petitioner can very well argue that he went up in appeal before the State Government only to obtain a favourable verdict as he felt assured that the Government could not enhance the penalty and could, at the worst, dismiss the appeal. There is obviously much force in this contention particularly because unlike the present Rules, the Rules of 1950 did not give a revisional power to the appellate authority. The term "appeal" has not been defined in either of the two sets of Rules. As has been put by Lord Westbury in Attorney General Vs. Sillan, 10 ML C. 704, the right of Appeal "is the right of entering a superior court and invoking its aid and interposition to redress the error of the court below. " According to the Oxford English Dictionary, an appeal is a "call to a higher judge or tribunal for deliverance from the adverse decision of a lower", or a "call upon a recognised authority to vindicate one's right or decide in one's favour in a dispute". In Nagendra Nath Dey Vs. Suresh Chandra Dey (1) it has been held by their Lordships of the Privy Council that "there is no definition of appeal in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate court, asking it to set aside or revise a decision of a subordinate Court, in an appeal within the ordinary acceptation of the term". It is, therefore, only natural and fair to conclude that when the petitioner filed his appeal before the respondent, he did so in the expectation of amelieoating his lot and, in the absence of any provision authorising the appellate authority to enhance the penalty, there was justification for that expectation. It may be mentioned that it has been held by a Division Bench of this Court in Poonam Ram Vs. The State of Rajasthan (1) that the Rules of 1950 did not authorise the appellate authority to enhance the punishment already awarded 10 a guilty official and that "as a matter of principle an appellate authority in an appeal by an aggrieved party may allow the latter's appeal partly or wholly or may dismiss it but it cannot give him higher punishment and thereby make his position worse than what it would be if he had not appealed, unless it has been vested with what we may conveniently call revisional jurisdiction. . . . . . ". As such it would not be fair to construe the provisions of sub-rule (3) of rule 35 of the Rules of 1958 to mean that the appellate authority had been given the power to apply all the considerations and to decide a pending appeal in the manner set out in rule 30 of those Rules. As has already been mentioned, there is obviously a lacuna in the sub-rule, but we are not called upon to report to the interpolation suggested by the learned Assistant Government Advocate when it is possible to construe the rule without filling the omission - particularly when that would have the effect of restricting a substantive and a vested right.
(3.) WE are fortified in the above conclusion by the following observation of Bowen, L. J. , in Reid Vs. Reid (2): "the particular rule of construction which has been referred to, but which is valuable only when the words of an Act of Parliament are not plain, is embodied in the well-known trite maxim, ominus nova constitutio futuris forman debet non praeteritis - that is, that, except in special cases, the new law ought to be construed so as to interfere as little as possible with vested rights. It seems to me that even in construing an Act which is to a certain extent retrospective, and in construing a section which is to a certain extent retrospective, we ought, nevertheless, to bear in mind that maxim as applicable whenever we reach the line at which the section ceases to be plain. That is a necessary and logical corollary of the general proposition, that you ought not to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the Legislature "meant" (Craies on the Statute Law, fifth edition pp. 380-1 ). So also, we may refer to the observations of Sulaiman J. in United Provinces Vs. Mst. Atiqu Begum (1) that "when a statute deprives a person of his right to sue or affects the power or jurisdiction of a court in enforcing the law as it stands, its retrospective character must be clearly expressed. Ambiguities in it should not be removed by courts, nor gaps filled up in order to widen its applicability. It is a well established principle that such statutes must be construed strictly, and not given a liberal interpretation. " These are sound rules of interpretation. As has been pointed out in Indramoni Nath Vs. Lokanath Barbhuiya (2), "the Court cannot, under the guise of interpretation, do something which the Legislature itself has not been able to fulfil. " We would, therefore, confine ourselves to the wordings of the sub-rule as they stood before the amendment of 1961 and interpret them to mean nothing more than a provision giving the appellate authority the power to hear and decide the appeal according to the new procedure. On such an interpretation it would follow that the respondent had no power to enhance the penalty in the instant case. In taking a contrary view and enhancing the petitioner's punishment by its order dated December 5, 1960, the respondent State has committed on error apparent on the face of the record and has exceeded its jurisdiction as an appellate authority. We would, therefore, allow the petition with costs and quash that order. .;