MISS KANTA BHATNAGAR, J. - (1.) PETITIONER, Ram Singh a Shutar Sawar, appointed in the year 1955, was removed from services by the Tehsildar, Jodhpur, by the order Ex. P. 13 dated 5. 8. 74. The petitioner, dissatisfied by that order, preferred an appeal before the S. D. M. , Jodhpur. The appeal was rejected by the order dated 21. 2. 75. Thereafter he filed a review application before the Collector, Jodhpur, which was rejected as not being entertain-able. The petitioner has now invoked the writ jurisdiction of this court under Art. 226 of the Constitution of India, impugning the orders Ex. p. 13 and p. 15. The averments are that he was appointed vide Ex. 1 on 21. 2 1955 by the Collector, Jodhpur, as Shutar Sawar (Camel Sawar ). A criminal case for identifying a wrong person at the instance of another employee of the Department in connection with a Taccavi loan of Rs. 250/- was instituted against him. Because of that case he was suspended vide order Ex. 2 on 15th June, 1965. He was acquitted in that case but was not reinstated because another criminal case under Sec. 9 of the Opium Act had been instituted against him. In that case he was convicted and sentenced by the trial court. The appellate court affirmed the judgment of the trial court. When the matter came in revision before this court, the petition was partly allowed and he was given benefit under die Probation of Offenders Act by the order dated 7. 7. 72, Ex. P. 8. He made a request for his reinstatement on the ground that he had been given benefit under the Profation of Offenders Act and as such there was no impediment in his reinstatement. The petitioner filed the application Ex. P. 10 before the Tehsildar, Jodhpur, for his reinstatement. The Tehsildar forwarded this application to the Collector and the Collector in his turn referred the matter to the State Government. The reply sent by the Government to the Collector is Ex. P. 11. Jt is mentioned therein that the reinstatement or removal of the petitioner would depend upon the discretion of the Disciplinary Authority. The Tehsildar, Jodhpur, issued notice Ex P. 12 under Art. 311 (2) of the Constitution of India to the petitioner. The petitioner filed the reply to that notice which is Ex. P. 20. The Tehsildar, Jodhpur, by the impugned order Ex. P. 13, ordered the removal of the petitioner from service. The petitioner has assailed that order as well as the appellate order on a number of grounds.
(2.) AT the time of the arguments, the learned counsel for the petitioner has mainly stressed the ground that the order of removal passed by the Tehsildar was invalid as being in contravention to the provisions of Article 311 (1) of the Constitution of India. According to the learned counsel the petitioner was appointed by Collector, Jodhpur, an authority definitely higher to the Tehsildar and therefore, the order of removal passed by the Tehsildar was erroneous. Mr. Udawat, learned Public Prosecutor, controverted these contentions on the ground that the petitioner could not establish by any document that he was appointed by the Collector and not by the Tehsildar. According to him a Tehsildar is empowered to appoint a Shutar Sawar and therefore, there could not have been any question of a higher authority like Collector making appointment for the post of a class IV employee. The first point for consideration in the matter, therefore, would be as to who had appointed the petitioner. The petitioner has come with a specific case that he was appointed by the Collector. In this concern reliance has been placed on Ex. 1 dated 3. 2. 55. This is the information sent by the Tehsildar, Shergarh to the Collector, Jodhpur, regarding the joining of service of the petitioner and two othere viz. Khaju Khan and Bhanwar Singh. This letter has been addressed to the Collector, Jodhpur, and with regard to the reference, it states as "your No. Estt. A/811 dt. 21. 1. 55 & 1039 Dt. 29. 1. 55". The subject mentioned to appointment of Camel Sawar in Jagir. According to Mr. Munshi, learned counsel for the petitioner, the petitioner was appointed on 21. 1. 55 by the Collector and as he had joined duty on 2 2. 55, information was sent by the Tehsildar on 3. 2. 55. This document of course does not speak that the petitioner was appointed on 21. 1. 55 by the Collector but shows that the Tehsildar had sent the information to the Collector about the petitioner joining duty on 2. 2. 55 and this information was sent in reference to the orders of the Collector mentioned above. The order No. Estt. A/811 Dt. 21 1. 55 and 1039 Dt. 29. 1. 55 may be taken to be some appointment order of the Collector's office. The petitioner has expressed his inability to produce his appointment order. In the reply filed by the non-petitioners there is no specific denial of the averment that the petitioner was appointed by the Collector. All that has been attempted to show was that the Tehsildar was empowered to appoint Class IV Servants and so it must be presumed that the appointment was made by the Tehsildar. The State or the concerned Department is the custodian of the orders of this tune. The non-petitioners in my opinion, should not have evaded the point by giving such a vague reply. It was expected of them to produce the appointment order by whom so ever it might have been made. It is partinent to note that along with the rejoinder the petitioner has filed Ex. P. 19 dated 6. 8. 76 the certified copy of the letter written by the S. D. M. , Jodhpur, dated 1. 1. 76, in connection with the application of the petitioner for supplying him the copies of review/revision petition filed by him and his appointment order. The office report shows that the copy of the first document was submitted for the signatures of the S. D. O. while for the second i. e. the appointment order, the report was, that, despite searching the whole of the record it was not traceable and therefore, the copy cannot be supplied to the petitioner. At the bottom there is the endorsement "appointment order "is not available" bearing the signatures of the S. D. O. If the Department could neither trace out the appointment order and supply a copy to the petitioner at his request nor could produce it along with the reply to the writ petition, the petitioner cannot be blamed for concealing his appointment order. Under such circumstances the petitioner can legitimately take help from Ex. 1 to substantiate his case that his appointment was by the Collector and therefore, the Tehildar in reference to that order intimated the Collector about the date of the petitioner joining service. The contention of the learned Public Prosecutor that, why the Collector would have made the appointment when Tehsildar was entitled to appoint, does not hold good for two reasons. Firstly, the appointment relates to the year 1955 and material has been placed before the court to show that at that time Tehsildar was entitled to make appointment of Class IV Servants. Secondly, there is Ex. P. 21 dated 7. 3. 55 the order of appointment passed by the Collector appointing Madhu Singh s/o Rawat Singh as Shutar Sawar. It is important to observe that the appointment of the petitioner was in the month of February, 1955, while that of Madhu Singh was only in the next month i. e. March 1955. Thus, it is clear that Collector, Jodhpur, was appointing Camel Sawars during that period. This being the position all that can be said is that petitioners came about his appointment being made by the Collector, Jodhpur, stands substantiated by documents. The next point emerging for determination is whether the petitioner having been appointed by the Collector, could be removed from service by the Tehsildar.
(3.) MR. Munshi has referred to a number of authorities on the point that the intention of Art. 311 (1) of the Constitution of India is that a civil servant cannot be removed from service by an authority subordinate to that appointing him. Mr. Udawat on the other hand has contended that whatever might be the position in the year 1955 Tehsildar was entitled to appoint Class IV servants in the year 1974 and therefore, he falls within the definition of Disciplinary Authority of Class IV Servants and as such, the order Ex. P. 13 does not violate the provisions of Article 311 (1) of the Constitution. Mr. Udawat, in support of his contention, has placed reliance on the observations made in the case of L. N. Savita vs Union of India (1 ). The question for consideration before his Lordship was, whether the Divisional Personnel Officer was same in rank with the Divisional Officer to whom the powers were delegated by the General Manager at the time of the concerned appointment. A booklet produced on behalf of the Railway Authorities showing the delegation of powers of making initial appointment to non-gazetted post to the Divisional Officer, was looked into by his Lordship. At the agreement of the learned counsel for both the sides his Jordship was pleased to hold that the Divisional Personnel Officer, is the same as Divisional Officer. In that view of the matter the order of compulsory retirement of the concerned employee appointed by the Divisional Officer was considered to be valid. In those circumstances, his Lordship was also pleased to observe that all that is required at that the person who passed the impugned the order must be competent of the time the impugned order was passed to appoint the petitioner. In order to properly explain this position it would be profitable to refer to certain authorities making it clear that it is the factum of appointment of Govt, employee which is to be taken into consideration and the power of an officer subordinate in rank to the appointing officer will not in any way affect the matter. ;