Tyagi, J. - (1.) THIS appeal of Bhawani Sahai is directed against the judgment and decree of the Senior Civil Judge, Jodhpur, dated 18th May, 1957 dismissing his suit for a declaration that the order of termination of his service dated 31st December, 1948, is illegal and void and therefore, he should be granted a decree for Rs. 74,900/- for compensation for the said wrongful termination of his services.
(2.) THE plaintiff Bhawani Sahai was in the employment of the erstwhile State of Jodhpur and he was holding a post, at the relevant time, that is, 31st December, 1948, of the Commissioner of Customs, Jodhpur and was drawing Rs. 675/- as pay in the grade of Rs. 650-25-850. THE case of the plaintiff is that he had a very good and brilliant record of service and throughout his career of service he discharged his duties honestly and diligently with the result that his services were always rewarded by the grant of extra promotions and written appreciations. THE Pradhan Mantri of the Jodhpur State by his order dated 31st December, 1948, terminated the plaintiff's services with effect from 1st January, 1949 without assigning any reasons for doing so. His contention is that the said order of the Pradhan Mantri was illegal and void because he was appointed as a Commissioner of Customs by the then Ruler of the Jodhpur State and he could not, therefore, be removed from service by any other authority except the Ruler. He further contended that His Highness the Maharaja Sahib was not present in the Jodhpur State from 7th December, 1948 to 17th January, 1949 and, therefore, his consent could not have been obtained to terminate the plaintiff's services. THE Pradhan Mantri and the Council of Ministers, who were subordinate to His Highness the Maharaja of Jodhpur, had no authority to pass the impugned order. He also alleged that it was against the principles of natural justice to terminate the plaintiff's services without calling any explanation from the plaintiff and also making an enquiry and giving an opportunity to the plaintiff to produce his defence into the reasons which actuated the authorities to pass the impugned order. This, according to the plaintiff, violated the general circular issued by the Jodhpur Government on 25th December, 1948, and also the provisions of the Marwar Service Regulations which governed the plaintiff's conditions of Service. THE plaintiff also challenged the order as being malafide and prejudicial. After the State of Jodhpur was merged in the United State of Rajasthan, the plaintiff served the successor State of Rajasthan with a notice under sec. 80 of the Code of Civil Procedure and thereafter brought a suit on the 20th January, 1955, claiming Rs. 64,700/- which he would have drawn as his salary till he attained the age of superannuation on 29th February, 1956 and Rs. 10,200/- as special contribution and further prayed that the order terminating the services of the plaintiff be declared illegal and void and it may be declared that he was still continuing in service. The State of Rajasthan contested the suit and denied the plaintiff's claim in toto. In its written statement it was averred that the plaintiff's services were terminated by His Highness the Maharaja of Jodhpur who, by his endorsement dated 24th January, 1949, confirmed the Council resolution dated 31. 12. 48 where under the plaintiff's services were terminated. By this act of the Maharaja it is contended that it should be taken that for all intents and purposes the order of termination was passed by the Maharaja himself. The defendant State also denied its liability as the successor State to pay the salary claimed by the plaintiff upto the age of 58 years. It was also pleaded that the order of His Highness the Maharaja of Jodhpur cannot be questioned in a court of law and it was averred that at the time of handing over the charge the plaintiff applied for one month's notice pay which was paid to him, and since the amount of the Provident Fund and the bonus has also been paid to the plaintiff, the plaintiff was not entitled to claim the salary which he would have drawn if allowed to be kept in service. The defendant also averred that it was not obligatory for the State Government of Jodhpur to keep the plaintiff in service. The suit, according to the defendant, was also time barred. The trial court framed as many as 11 issues but we feel that the decision of issue No. 5 which relates to the justiciability of the impugned order, will be sufficient to dispose of this appeal. Plaintiff Bhawani Sahai examined himself as his witness. The defendant State has not produced any oral evidence but filed certain documents to support the pleas taken by it in its written statement. Learned Senior Civil Judge, after taking into consideration the entire material on the record, came to the conclusion that under the Jodhpur Government Service Regulations the Government or the employee could put an end to the service by giving one month's notice to either party. If the Government wanted to terminate the services of the plaintiff immediately without giving one month's notice, then it could do so only when there was a case of insubordination or other misconduct, breach or non-performance of any of the provisions of law or when the Government servant concerned was found to be incompetent to discharge his duties, and since the Government have failed to show that the plaintiff's services were terminated on account of any misconduct or dereliction of duty on his part, it was found that he was entitled to one month's notice, but, according to the learned Judge, the failure on the part of the Government to serve the plaintiff with such a notice would not make the order of termination illegal. It was also held that the State of Rajasthan was not in any manner obliged to keep the plaintiff in its service and, therefore, the claim for the salary upto the period when the plaintiff was to attain the age of superannuation was rejected by the trial court. The learned Judge, however, held that the suit was within time as Art. 120 of the Limitation Act of 1908 was applicable to the circumstances of this case. Mr. Mathur, appearing on behalf of the appellant has taken a different stand in this Court from what was averred in the plaint, and has contended that it was within the competence of the State Government to have terminated the services of the plaintiff as under the Government of Jodhpur Act, 1947, His Highness the Maharaja, who was a sovereign, had put certain fetters on his sovereign powers and by virtue of sec. 8 of the said Act the powers of superintendence and control of the Civil administration vested in the Council which naturally conferred the power to dismiss or terminate the services of the State employees on the State Council. He, however, challenged the validity of the Council Resolution dated 31st December, 1948, on the ground that it was passed by the State Government in clear violation of the Jodhpur Government Service Regulations of 1925 and the General Circulars issued in that behalf by the Government of Jodhpur on the 25th of December, 1948 under the powers given under sec. 70 of the Government of Jodhpur Act, 1947. Learned counsel for the appellant also urged certain other points in support of the contentions raised by the plaintiff in his suit before the trial court, but as the appeal can be disposed of on a preliminary objection raised by the State that the legality of the order passed by the Ruler of the former State of Jodhpur, before the Constitution came into force, cannot be challenged in a court of law, which objection goes to the root of the matter, I do not propose to refer the arguments advanced on other points by the plaintiff-appellant. There appears to be no controversy between the parties on the facts that the impugned resolution terminating the services of the plaintiff was passed by the State council on 31st of December, 1948, and the same was subsequently ratified by the Ruler of the State of Jodhpur on 24th January, 1949. It is also not in controversy now, as the learned counsel for the appellant has taken a new stand before us, that the State Council was competent to pass such an order, and that even if the order was not confirmed by the Ruler of the State, it could not be challenged as illegal as the resolution was adopted by the State Council which under the Government of Jodhpur Act was competent to pass such an order. The only thing on the basis of which the Council resolution is impugned is that the order is violative of the principles of natural justice and it was passed without affording an opportunity to the plaintiff to explain his conduct which was obligatory on the State to do before passing such an order, and therefore it was void and inoperative. The State Government has, however, contested that even if the impugned order was passed by the then Jodhpur Government without giving any show cause notice to the plaintiff and without affording him an opportunity to show cause for terminating his services, the validity of the order cannot be challenged in the court of law as no suit could be filed against the Jodhpur Government without the express permission of the His Highness' Government. In this connection, our attention has been drawn to an order of the State Government of Jodhpur dated September 19, 1933 published in the Jodhpur Government Gazette dated 30th September, 1933, which reads as follows: "no. 10697 - His Highness the Maharaja Sahib Bahadur has, vide Council Resolution No. 4 dated 22nd August, 1933 been pleased to order that no civil suit against the Government or any department of Government shall be maintained without the express permission of His Highness Government. Sd/ - Chain Singh Judicial Minister, Government of Jodhpur. " If the objection of the State that no suit could lie against the Jodhpur State to challenge the validity of the impugned order and therefore the State of Rajasthan which is a successor State cannot be sued, for the cause of action arose before the State of Jodhpur merged with Rajasthan and the suit is not maintainable against the present State also then. I need not go into merits of the objection raised by the plaintiff appellant that the impugned order is bad in law as it violated the principles of natural justice. Let me, therefore, examine the preliminary objection of the State. Learned counsel for the appellant could not point out in the Marwar Code of Civil Procedure adopted by the Regency Council Marwar Raj on 19th April, 1913, and published in the Marwar Gazettee dated 31st May, 1913, any provision analogous to section 80 of the Code of Civil Procedure now in vogue. There is no provision in the Government of Jodhpur Act, 1947 also which could confer a right on the subjects of the State to file a suit against the State as is found in Art. 300 of the Constitution. On the contrary, there is a specific denial of such a right to the subjects of the Jodhpur State which is contained in the order of the Ruler dated 19. 9. 1933 published in the Jodhpur Government Gazette dated 30th September, 1933. This position is not challenged by the learned counsel for the appellant that His Highness the Maharaja of Jodhpur was a sovereign ruler and he in his sovereign capacity had the competence to curb the rights of the people to file a suit against the State or its department without express permission of the His Highness' Government. Learned counsel for the appellant could not point out any subsequent order of the ruler whereby the order of 19. 9. 1933 would have been revoked. This is admittedly a pre-constitution matter and the plaintiff's services were terminated at the time when Jodhpur was a full-fledged sovereign State ruled by a sovereign Ruler whose actions could not be challenged by filing suits in a municipal court. The cause of action in the present suit, as is evident from the averment made in the plaint, arose to the plaintiff on 31. 12. 48. Simply because there had been changes in the structure of the Government on account of the revolutionary political upheavals in the country, the plaintiff cannot claim that a right which was denied to him during the regime of the then ruler of Jodhpur automatically accrued to him on account of the change in the form of the Government in the year 1949 when the State of Jodhpur merged with other Indian States of Rajputana and carved out a new State of Rajasthan. The Constitution came into force in January, 1950 and thereafter this right accrued to the plaintiff by virtue of Art. 300 of the Constitution. But this suit relates to the cause of action which arose much before the Constitution was framed and brought into effect, and it is now a well settled principle of law that the Constitution cannot be given retrospective effect in its operation. It is difficult for me to hold that the subsequent political changes in the structure of the Government of Jodhpur State conferred a right on the plaintiff to challenge by way of suit the action of the ruler or the Government of former Jodhpur State. In this view of the state of law, I am constrained to hold that the plaintiff cannot question the validity of the order terminating his services passed by the State Council and subsequently confirmed or ratified by the State Ruler, in the municipal court by filing a regular suit. This appeal of the plaintiff could be disposed of on the decision of the preliminary objection of the defendant-respondent alone as it goes to the root of the matter, but in view of the vehemence with which other points were canvassed before us by Mr. Mathur, I propose to deal with them also. It has been contended that the impugned order was passed in the utter disregard of the principles of natural justice and also in violation of the Jodhpur Government Service Regulations, and, therefore, it is void. In this connection, he has referred to the General Circulars issued by the Dewan of the Jodhpur State in 1948. The preamble and R. 4 of the Circulars contain a specific direction and that too in an unequivocal language, that no Government Servant shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him except (a) when he is dismissed or reduced on the ground of conduct which had led to his conviction on a criminal charge or (b) when he has absconded or disappeared making it impractible to give him an opportunity to show cause. It is further argued by learned counsel that the word 'dismissal' used in R. 4 as well as in the preamble covers the cases of removal from service also and because his case is not covered by any of the two exceptions mentioned in clause (a) and (b) of the preamble, he should not have been removed from service without affording him a reasonable opportunity of showing cause for the action proposed to be taken against him. It was also urged that the General Circulars were issued by the Dewan under the powers conferred by sec. 70 of the Government of Jodhpur Act, 1947; and this being a statutory provision, it should have been implicitly obeyed before the order of termination of services was passed by the State Government and as the direction contained in the said circulars which is mandatory in nature, was altogether ignored by the State Council in passing the impugned order it is vitiated and cannot, therefore, be enforced against the plaintiff-appellant in denying him his right of pay upto the age of superannuation. It may be noted at the very outset that there is nothing in these General Circulars to show that they have been issued by the State Government or its Dewan under the powers conferred by sec. 70 of the Government of Jodhpur Act, 1947. I find a foreword written by Shri P. S. Rau, the then Dewan of the Jodhpur State which is dated 25th December, 1948. In this foreword, the Dewan has made it clear that on the eve of introduction of the district administration system, as it has existed in Indian Provinces, it is considered desirable to issue standing orders for the guidance of State officers. These should be carefully studied and followed, "suggestions for improvement will welcome. " This foreword amply clarified the position that these circulars were nothing but the standing orders issued by the Dewan for the guidance of the State officers in the discharge of their duties. There is nothing to show that the General Circulars were issued by the State Council and that they were framed or made by the State Council by virtue of the powers vested in it under sec. 70 of the Jodhpur Act, 1947. It will be relevant to observe here that the plaintiff, before filing a suit, had come to this Court, invoking its extraordinary jurisdiction under Art. 226 of the Constitution and he raised this very plea before this Court in the writ application that the order of the State Council issued under the signatures of the Pradhan Mantri was violative of the General Circulars, specially R. 4 thereof. But this plea was turned down by the Court on the ground that the General Circulars, however, had no force of law as the Rules were issued by the Dewan for the guidance of the State officers and were not of the nature which could be held binding on the Government. (See Lala Bhawani Sahai vs. The State of Rajasthan: ILR (1954) 4 Raj. 885 ). Learned Deputy Government Advocate placed his reliance in this connection on another Bench decision of this Court in Shiv Charan Lal and Chandra Dutta vs. State of Rajasthan and Director of Education, Rajasthan (l), where two school teachers were dismissed by the Director of Education for not complying with the orders of the Education Secretary. They filed appeals to the Government but the appeals were also rejected on 23. 5. 1950 but before the appeals were rejected and the intimation thereof was given to them, they preferred writ applications before this Court praying for the issue of a suitable writ directing the State Government or the Director of Education to re-instate them. In that case, reliance was placed by the petitioners on the provisions of the Jaipur Civil Service Regulations and it was urged that an order passed in contravention of the provisions of the said regulations shall be void. R. 7 of the Jaipur Civil Service Regulations cast a duty upon the authority before making an order of dismissal or removal against a subordinate employee to serve him with the specific charge or charges and give him a reasonable opportunity of filing or producing his defence and cross-examining witnesses produced against him but as the said Regulations were not framed under the authority of any Statute, their Lordships held that the Regulations could neither be said to be statutory nor were they made under the authority of a statute ; they were simply rules for the guidance of the authorities. In this connection it was observed: "it cannot be said that rule 7 of Appendix L casts a legal duty upon the Heads of the Departments or other authorities to adopt the particular procedure laid down therein. Of course, it is in the interest of fair play that they should not ignore the procedure prescribed for their guidance. If, however, they ignore it, it cannot be said that they have acted in breach of some legal duty. Mere rules do not possess the force of law. "
(3.) SIMILAR is the position here. General Circulars referred to by the plaintiff's counsel have not been issued or framed under any statute. They seem to have been issued by the Dewan of Jodhpur State for the guidance of the officers in the discharge of their duties. I feel that it would have been certainly in the interest of fair play and justice if the plaintiff had been served with a notice and had been afforded an opportunity to show cause for the action taken against him, but if the principles embodied in these Circulars have not been complied with, it would not vitiate the order passed by the competent authority simply because the high principles enshrined in the Circulars were not taken note of by the authorities that issued the impugned order. They have no force of law as they cannot be said to have been issued by the State Council under the rule making authority as conferred on it by sec. 70 of the Government of Jodhpur Act, 1947. I may now advert to the second contention raised by Mr. Mathur in this behalf, that the impugned order violates the provisions of r. 9. of Chapter III of the Jodhpur Government Service Regulations which had the force of law. Learned counsel could not point out whether these Regulations were issued under the authority of His Highness the Maharaja of Jodhpur who was the Legislature in the State at the relevant time when they were issued. Even if I assume that these Regulations had attained the status of the law, then I have to see whether the order passed by the State Government, which has been impugned before us, is in violation of r. 9 of Chapter III of the said Regulations. R. 9 reade as follows: "every permanant Government servant, except those engaged from outside the Government on special agreements, will be liable to give, and be entitled to receive one month's notice to terminate service. This notice will be subject to his conforming to all such rules and regulations as are in force or may be extended from time to time by the Government, and he will obey all such orders and directions as he shall from time to time receive and if he shall be guilty of any insubordination or other misconduct or any breach or non-performance of any of these provisions, or, if it shall be reported to the competent authority by the officers under whom he shall be placed that he is incompetent to perform any one or more of the duties undertaken by him, the competent authority may immediately and without previous notice dismiss or discharge him from service The Government shall be the sole and absolute judge and its decision shall be final for the purpose of determining whether the individual has been guilty of any insubordination or misconduct or has committed any breach in the performance of these provisions and whether he is competent to perform any one or more of his duties. " The bare perusal of this rule shows that both the employer and the employee in the State of Jodhpur except those who were engaged on special agreements were liable to give and entitled to receive one month's notice to terminate service. Such a notice was not necessary in the case of the termination of service of those employees who may be found guilty of any insubordination or other misconduct or any breach or non-performance of any of these provisions, if he was found to be incompetent to perform his duties; in that case the competent authority could terminate the services even without notice to the employee. This rule further empowers the Government as being the sole and absolute judge and its decision, which shall be final for the purpose of determining whether the individual officer has been guilty of any insubordination or misconduct, etc. etc. This does not confer any right except that the employee whose services are going to be terminated must receive one month's notice. This, in my opinion, entitles the employee to receive only the salary for the notice period. If the services of a State employee are terminated without giving him one month's notice, then, to my mind, the non-compliance of the provision of the rule would not go to invalidate the order. The utmost which in such circumstances an employee can claim is the salary for the notice period which in this case the defendant State had already paid to the plaintiff. I may also observe that according to the general principles governing relationship of the master and the servant it is not open to the servant to say that he should be kept in the employment. This principle shall equally be applicable to the employment in the State subject of course to other conditions which may have been prescribed by the employer. I find that there is no such regulation in the Jodhpur Government Service Regulations which may empower the State employee to claim that he should serve till he attaints the age of superannuation. If his services are terminated not strictly in accordance with R. 9 of the said Regulations then he can simply demand either one month's notice or in lieu thereof one month's salary. He cannot in my opinion, demand that he should be kept in service till the age of 58 because he had not been served with one month's notice under R. 9 of the Jodhpur Government Service Regulations. The result is that the appeal fails and it is hereby dismissed. Having regard to the circumstances of the case, we leave the parties to bear their own costs in this Court. Modi, J.- I agree with the conclusion arrived at by my learned brother Tyagi, J. that this appeal be dismissed but I would prefer to state my reasons in my own words for the conclusion to which I have come. The facts of the case out of which this appeal arises have been narrated at length by my learned brother in his judgment and I need not reiterate them. I consider it sufficient to state that the services of the plaintiff who held the post of Commissioner of Customs in the former State of Jodhpur at all material times were terminated with effect from the 1st January, 1949 by a resolution dated the 29th Dec, 1948, of the State Council of Jodhpur which was confirmed by His Highness the Maharaja of that State on the 24th January, 1949. The plaintiff appellant then filed a civil miscellaneous writ application in this High Court praying, inter alia, for his re-instatement and payment to him of his emoluments with effect from the date of the termination of his service being the 1st January, 1949, which was dismissed on merits by a bench of this Court (Bapna and Sharma JJ.) by its decision dated the 5th April, 1954, which has been reported as Bhawani Sahai vs. The State of Rajasthan (l ). The present suit then came to be filed on the 20th January, 1955, against the successor State of Rajasthan after a statutory notice under sec. 80 C. P. C. had been admittedly given to it. It was prayed that the order terminating the services of the plaintiff be declared to be illegal and it be further declared that he still continued in the service of the State and further that a decree for Rs. 74,900/- be passed as compensation obviously in lieu of the salary he would have earned if his services had not been terminated. The suit was opposed by the State and has been dismissed by the trial court and hence the present appeal. ;