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PETITIONER: STATE OF HARYANA AND OTHERS

       Vs.

RESPONDENT: RAJINDRA SAREEN

DATE OF JUDGMENT22/11/1971

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. MATHEW, KUTTYIL KURIEN

CITATION:  1972 AIR 1004            1972 SCR  (2) 452  1972 SCC  (1) 267  CITATOR INFO :  E&D        1992 SC 604  (112)

ACT: Punjab Public Relations Department (Gazetted) Service  Rules 1958--Post  of  Deputy Director (Press) held for  more  than three years without ,order of termination of probation being passed-Post  held  in officiating capacity-Proviso  to  Rule 10(3) does not apply. Civil   Service-Appointment  made  co-terminus  with   post- Termination  of  appointment while post  continues  attracts Art. 311(2) of Constitution. Mala  fides--Several  incidents cited to  show  mala  fides- Cumulative    effect    of   all   allegations    must    be seen--Considering each incident by itself not proper.

HEADNOTE: The respondent joined the service of the composite State  of Punjab  and  Haryana on June 22, 1957 as the  State’s  Press Liaison officer at Delhi in the Public Relations  Department of  the  State.  The original appointment was to  last  till February  28, 1958 but was continued by orders  passed  from time  to time.  The respondent went on leave for  about  six months  from  November  21,  1959  to  May  18,  1960   with permission to act in Pakistan as a Special Correspondent  of The  Hindustan  Times Delhi.  On return from  leave  he  was posted  in the same service in the post of  Deputy  Director (Field) from July 19, 1960 to September 19, 1960.  Later  on he  was  again posted as Officer on Special Duty  which  was also an equivalent post, from September 20, 1960 to June 26, 1962.  When he crossed the efficiency bar in 1960 his salary was  raised  with  effect from December 24,  1960.   He  was appointed as Deputy Director (Press) which post was held  by him  from  June 27, 1962 to June 14, 1966.  By  order  dated June 24, 1966 the Governor of Punjab appointed him as  State Press Liaison Officer with effect from June 14, 1966 and  he was  posted to Delhi.  This post had been kept  in  abeyance during  the period when he was Deputy Director (Press).   On the reorganisation of the composite State of Punjab and  its bifurcation  into the States of Punjab and Haryana the  post of  State  Press Liaison Officer.  Delhi, held  by  him  was allocated to the State of Haryana with effect from  November 1, 1966.  He was also allotted to the State of Haryana.   He

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remained  on  deputation  with the  Punjab  Government  from December  1,  1966 to March 24, 1967 and again  resumed  his duty  as State Press Liaison Officer, New Delhi, from  March 25,  1967 under the Government of Haryana.  By  order  dated October  31,  1968  the Haryana  Government  terminated  his services.  The respondent filed a writ petition in the  High Court.   The  High  Court rejected the plea  of  mala  fides raised  by  the  respondent but allowed  the  writ  petition holding in the respondent’s favour that (a) under Rule 10(3) of  the Gazetted Service Rules the respondent on  completing three years service as Deputy Director (Press) had become  a permanent  employee of the Government-, (b) the  appointment of the respondent to the post of State Press Liaison Officer was  co-terminus  with  the existence of the  post  and  the respondent was entitled to continue in the post while it was in  existence  i.e. UP to February 28, 1969.  On  the  above grounds  the High Court quashed the order dated October  31, 1968.  Following the High Court’s order the State Government reinstated  the appellant but filed an appeal in this  Court challenging  the  High  Court’s judgment.   Apart  from  the merits, the Court 453 had to consider the preliminary objection of the  respondent to  the effect that in view of the fact that the  respondent had been reinstated in service the question of the  validity of the original order passed on October 31, 1968 terminating the  services  of the respondent, did not survive  for  con- sideration. HELD  :  (i) The circumstance that the respondent  was  are- instated  in  service by the order dated  December  5,  1969 could not and does not debar the State from challenging  the judgment  of  the  High Court.  In  fact  immediately  after passing the order dated December 5, 1969. the State had been taking  very active-steps to challenge the decision  of  the High Court.  It followed that the State was entitled in  the present  appeal to challenge the decision of the High  Court setting  aside  the  order  dated  October  31,  1968.   The preliminary  objection must accordingly be over-ruled.  [457 D-E] (ii) The  approach  of  the High Court  in  considering  the allegation of mala fides was not proper.  The High Court had taken each allegation by itself and had held that it was not sufficient  to  establish mala fides.  The  proper  approach should  have been to consider all the  allegations  together and find out whether those allegations had been made out and whether  those allegations when established were  sufficient to  prove  malice or ill-will on the part of  the  officials concerned  and whether the impugned order was the result  of such malice or ill-will, [472 B-C] On  the facts of the case the plea of mala fides alleged  by the respondent against the second and third appellants could not be accepted [475 F] Principles laid down in S. Pratap Singh v. State of  Punjab, [1964] 4 S.C.R. 733, followed. (iii)     When the respondent was appointed Deputy  Director (Press) the former incumbent of the post R who was  promoted as  Joint  Director, continued to have lien on it  under  r. 3.14  of the Civil Service Rules.  Under r. 3.11(c)  of  the Civil Service Rules a Government servant cannot be appointed substantively to a post on which another Government  servant holds a lien.  Therefore on the date when the respondent was appointed as Deputy Director (Press) he could not have  been appointed to that post substantively as R was having a  lien on the post.  The various payslips which are on record  also show that the respondent’s appointment must have been on  an

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officiating basis as defined in r. 2.42 of the Civil Service Rules.   The objections of the Public Service Commission  to the  respondent’s  appointments as Deputy  Director  (Press) were  also on record.  All these circumstances were  against the  contentions  of  the  respondent  of  his  having  been appointed against a permanent vacancy. [481 A-D] The  essential requisite for the applicability of r.  10  is that  a person must have been appointed against a  permanent vacancy.  As the respondent had been working in the post  of Deputy Director (Press) only in an officiating capacity  the question  of  extending  hi-, probation  or  confirming  him tinder  r. 10 of the Gazetted Service Rules did  not  arise, and  if so the question of calculating the total  period  of probation  of  three  years  which  is  necessary  for   the application  of the Proviso to r. 10(3) did not arise.  [482 G] The  circumstance  that with effect from April 1.  1964  the post  of  Deputy  Director  (Publicity  Material)  was  made permanent  could not help the respondent as he had not  been at  all appointed in the first instance against a  permanent vacancy.  The view taken by the High Court, to the contrary, could not be sustained. [484 E] State of Punjab v. Dharam Singh, [1968] 1 S. C. R. 1, C . 1. T . Mysore v.  Indore Mercantile Bank, Ltd., [1959] Supp.  2 S.C.R. 256, Tahsildar 454 Singh v. State of U.P., [1959] Supp. 2 S.C.R. 875, State  of Madhya  Pradesh v. Lal Bhargavendra Singh, [1966]  2  S.C.R. 56, Dr. Deep Kaur v. State of Punjab, [1967] 1 S.L.R. 34 and Devi  Shanker Parbhakar v. State of Haryana [1971] 73 P.  L. R. 644, referred to. (iii)     No orders had been placed before the Court to show that  the  appointment  of the  respondent  as  State  Press Liaison  Officer  was on a temporary basis and was  not  co- terminus  with  the post.  On the other hand  the  Assistant Accounts  Officer  had issued payslip dated April  22,  1968 which  was on record to the Treasury Officer, Delhi  stating that the payslip issued in favour of the respondent who  was the  State  Press Liaison Officer, Haryana,  New  Delhi,  on August  31,  1967  may  be  deemed  as  operative  upto  and inclusive of February 28, 1969.  It was not disputed that at the  time when the said payslip was issued, the duration  of the post had been extended upto February 28, 1969.  In  view of all the circumstances it is reasonable to infer that  the appointment of the respondent as State Press Liaison Officer was  co-terminus  with  the continuance  of  the  post.   It followed  that  the  State had no  power  to  terminate  the services  of  the  respondent  when  the  post  itself   was continuing.    If   any  action  by  way   of   disciplinary proceedings  was  being  taken then the  State  should  have complied with Art. 311(2) of the Constitution which they had admittedly  not done in this case.  The order of  the  State Government  dated October 31, 1968 terminating the  services of  the respondent was accordingly held to be illegal,  [489 H, 490 A, E, G]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1543 of 1970. Appeal from the judgment and order dated September 18,  1969 of the Delhi High Court in Civil Writ No. 851 of 1968. V.   M.  Tarkunde,  C. D. Dewan, 0. N. Mohindroo and  R.  N. Sachthey, for the appellants. M.   K.  Ramamurthi, P. P. Rao and T. V. S.  Narasimhachari,

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for the respondent. The Judgment of the Court was delivered by Vaidialingam,  J. This appeal by the State of  Haryana,  the Chief  Minister of the State and the Registrar  Co-operative Societies, on certificates is directed against the  judgment and  order  of the High Court of Delhi dated  September  18, 1969  allowing Civil Writ No. 851 of 1968 and  quashing  the order  of  the  State  Government  dated  October  31,  1968 terminating the services of the respondent. Before  we  proceed to set out the facts leading up  to  the filing  of  the  writ  petition by  the  respondent,  it  is necessary  to  deal  with a  preliminary  objection  to  the maintainability of the appeal that has been raised by Mr. M. K.  Ramamurthy,  learned counsel for  the  respondent.   The objection   is  that  the  order  dated  October  31,   1968 terminating  the  services  of  the  respondent,  which  was quashed 455 by the High Court and which order again is sought to be can- vassed  in  the appeal has been cancelled by  the  State  on December 5, 1969.   In consequence of the latter order,  the counsel pointed out, the respondent  has been reinstated  in service. It is the contention of  Mr. M. K. Ramamurthy  that in view of the fact that the officer has now been reinstated in  service,  the question of the validity of  the  original order passed on October 31, 1968 terminating the services of the respondent no longer survives for consideration in  this appeal. This  preliminary objection has been contested by Mr. V.  M. Tarkunde, learned counsel for the appellants. We  are satisfied that the preliminary objection, raised  on behalf  of  the respondent, to the  maintainability  of  the appeal,  cannot be sustained for the reasons  stated  below. The  order  of termination was passed on October  31,  1968. The respondent filed Civil Writ No. 851 of 1968, before  the High Court, challenging the said order.  The judgment of the High  Court  setting aside the said order and  allowing  the writ petition was rendered on September 18, 1969.  It is  no doubt  true that on December 5, 1969, the  State  Government passed an order canceling the previous order of  termination dated  October 31, 1968 and posted the respondent as  Deputy Director  (Publicity)  at Narnaul.  The said  order  further directed  the  payment  to  the  respondent  full  pay   and allowances that he would have been entitled, if his services had  not been terminated.  But there is a  very  significant recital  in  the  order  to the effect  that  the  State  is canceling the previous order dated October 31, 1968, in view of  the, acceptance by the High Court of the  writ  petition filed by the respondent.  A copy of the order dated December 5,  1969,  was  also  forwarded by  the  Government  to  the Assistant Registrar of the High Court of Delhi. The State filed on December 19, 1969, an application  S.C.A. No.   1  of  1970 in the High Court  praying  for  grant  of certificate  to enable the State to file an appeal  in  this Court  against the decision in Civil Writ No. 851  of  1968. On  the next day, i.e. December 20, 1969 the State  filed  a petition C.M. No. 15 of 1970 in S.C.A. No. 1 of 1970 praying for  restraining  the respondent from  claiming  arrears  of salary  and allowances for the period he was out of  service from  October 31, 1968 or in the alternative to  direct  the respondent  to  furnish  sufficient  bank  guarantee  before recovering  those amounts from the State.  This request  was made to enure till the disposal of the application filed  by the  State for grant of certificate.  Both in  the  petition C.M.  No.  15 of 1970 as well as in the affidavit  filed  in

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support thereof, it was specifically mentioned that the copy of the judgment of the High Court was received by the  Chief Secretary to the Government on November 25, 1969 456 and that in compliance with the judgment of the High  Court, the   respondent   had  been  posted  as   Deputy   Director (Publicity)  at Narnaul by order dated December 5, 1969.   A copy of this order was also annexed to the petition.  It was further  stated  that the amount payable to  the  respondent being  very large, there will be considerable difficulty  in obtaining restitution in case the judgment of the High Court is  set  aside by this Court.  After setting out  the  above facts, the State prayed for a stay of payment of the amounts or  the  respondent  being  asked to  draw  the  amounts  on furnishing bank guarantee pending the disposal of S.C.A.  No 1 of 1970. The  respondent filed counter-affidavits, both to  the  main application  S.C.A.  No. 1 of 1970 as well as  to  the  stay petition  No. 15 of 1970.  In his counter-affidavit  to  the stay  petition he bad referred to the decision of  the  High Court in his favour and to the order dated December 5,  1969 passed  by the State reinstating him in service.  No  doubt, he  has  averred  that this order  was  passed  without  any reservation  or  qualification.  He also  opposed  the  said application  on merits.  In his  counter-affidavit  opposing S.C.A. No.  1 of 1970, the respondent had again stated  that the  previous order of termination, which was set  aside  by the  High  Court, was cancelled on December 5, 1969  by  the State without any reservation or qualification.  In view  of this the respondent averred that the position in law is that the  order  dated October 31, 1969 should be  considered  to have  never  existed  at any time and  therefore  there  was nothing further for the State to agitate in this Court. After  hearing both the parties, the learned Judges  of  the High  Court, who were fully aware, of the averments made  by the respondent as well as the order dated December 5,  1969, passed by the State, by their order dated February 13, 1970, granted  the  certificate of fitness.   Regarding  the  stay petition,  the High Court has stated that as the  respondent herein,  has  been reinstated and also been  paid  his  full salary  and allowances, no further question of  staying  the payment   or  directing  the  respondent  to  furnish   bank guarantee  arises  for consideration.  In this  view,  while granting the certificate and allowing S.C.A. No. 1 of  1970, the stay petition C.M. No. 15 of 1970 was dismissed. In view of what is stated above, it is clear that the  order dated December 5, 1969 was passed by the State in  obedience to the judgment of the High Court setting aside the previous order  dated  October 31, 1968.  It  has  been  specifically stated  by the State in the order dated December 5, 1969  as well as in the various affidavits and applications, referred to  above,  that the State had taken steps to come  to  this Court against the decision of the High Court of Delhi.   The order dated December 5, 1969 read in the context 457 in which it was made and taking into consideration the other circumstances,  mentioned  above, it will be seen  that  the State  was  not unconditionally canceling  the  order  dated October 31, 1968 with a view to take back the respondent  in service for all times.  If the intention of the State was to cancel  the order dated October 31, 1968 and  reinstate  the respondent  in service with ail the attendant benefits  that he  will be entitled to, then it was totally unnecessary  on the part of the State to have filed an application for grant of  certificate and also pray for stay regarding payment  of

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arrears  of salary and allowances.  The State was  bound  to comply with the judgment passed by the High Court.  In  this case, it must be stated that the State acted quite  properly in so complying with the judgment of the High Court when the order  dated  December 5, 1969 was passed.   Therefore,  the order dated December 5, 1969 must, in the circumstances,  be considered  to  be  a purely  provisional  one  pending  the ultimate   decision   of   this   Court.    Therefore,   the circumstances that the respondent was reinstated in  service by  the  order dated December 5, 1969 cannot  and  does  not debar  the State from challenging the judgment of  the  High Court.   In fact, immediately after passing the order  dated December  5,  1969, the State has been  taking  very  active steps to challenge the decision of the High Court.  In  view of all these above circumstances, it follows that the  State is  entitled, in this appeal, to challenge the  decision  of the  High  Court setting aside the order  dated  October  31 1968.   The preliminary objection, in consequence, is  over- ruled. Having  disposal of the preliminary objection, we  will  now proceed  to state the facts leading up to the filing by  the respondent  of  the writ petition in the  High  Court.   His averments in the writ petition were as follows : He  joined the services of the composite State of Punjab  on June 22, 1957 as States Press Liaison Officer in Delhi on  a starting  salary  of  Rs. 600/- p.m. in  the  grade  of  Rs. 500-25-650/30-800 in the Public Relations Department of  the State.  By order dated June 28, 1957 the Governor of  Punjab created  a post of State Press Liaison Officer at  Delhi  in the  scale  mentioned above with effect from June  22,  1957 till  February 28, 1958 in the Public Relations  Department, Punjab  and also approved his appointment to the said  post. This  order further directed that the expenditure is  to  be met  from  within  the budget grant under  the  head  stated therein for the year 1957-58.  A copy of the order was  also communicated   to   the  Accountant  General,   Punjab   for information.   By order dated August 1, 1957,  dealing  with the  appointment,  posting and ’transfer,  the  Governor  of Punjab  appointed  him  as State Press  Liaison  Officer  at Delhi,  in the grade mentioned in the order, in  the  Public Relations Department.  The order further referred 458 to the fact that the officer has taken charge of his  duties with  effect from June 22, 1957 afternoon.  The creation  of the  post of the State Press Liaison Officer as well as  his appointment to the said post were done simultaneously by one and the same order dated June 28, 1957.  In July, 1962,  the Governor  of  Punjab, ,created the Punjab  Public  Relations Service and the post of State Press Liaison Officer in Delhi was  included in the said service as a cadre post.  He  went on leave for about six months from November 21, 1959 to  May 18,  1960  with permission to act in Pakistan as  a  Special Correspondent of the Hindustan Times, New Delhi, on a salary of  Rs. 1500/- p.m. On return from leave, he was  posted  in the same service in the post of Deputy Director (Field) from July 19, 1960 to September 19, 1960.  Later on, he was again posted  as  Officer  on  Special Duty,  which  was  also  an equivalent  post, from September 20, 1960 to June 26,  1962. When  he crossed the efficiency bar in 1960, his salary  was raised with effect from December 24, 1960.  He was appointed as Deputy Director (Press), which posit was held by him from June  27,  1962 to June 14, 1966.  By order dated  June  24, 1966  the Governor of Punjab appointed him as  State  Press, Liaison  Officer  with  effect from June 14,  1966  and  was posted  to Delhi.  The order states that his appointment  in

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Delhi  to his original post is "consequent upon the  revival of  the  State Press Liaison Officer, Delhi." This  post  of ’State  Press  Liaison  Officer had been  held  in  abeyance during  the period when he was Deputy Director (Press).   On the reorganisation of the composite State of Punjab and  its bifurcation into the States of Punjab and Haryana, the  post of  State  Press Liaison ,Officer, Delhi, held by  him,  was allocated to the State of Haryana with effect from  November 1, 1966.  He was also allotted to the State of Haryana.   He remained  on  deputation  with the  Punjab  Government  from December  1,  1966 to March 24, 1967 and again  resumed  his duty  as State Press Liaison Officer, New Delhi, from  March 25,  1967 under the Government of Haryana.  He continued  to work  in the said post till October 31, 1968, on which  date the  impugned order terminating his services was  passed  by the State Government. The  respondent claimed that since his appointment in  June, 1957, no fault has been found in his work by the  successive Chief  Ministers and other superior officers, under whom  he worked.   Even  when  he  was working  under  the  State  of Haryana,  his  duties were to maintain liaison  between  the State and the press in Delhi and to explain the policies  of the State Government to leading public men in Delhi.  It was also  part  of his duty to arrange interviews to  the  Chief Ministers  with  the gentlemen of the  "fourth  Estate"  and other  authorities  and  agencies  at  Delhi.   The   second appellant  was elected on May 19, 1968 as the leader of  the Haryana  Congress Legislative Party and was due to be  sworn in as Chief 459 Minister  of  the State at New Delhi on May 21,  1968.   The respondent refers to a series of incidents which took  place between  him  and the second and the third  appellants.   In view of these circumstances, both the Chief Minister and the third  appellant, who was the Head of the  Department,  mala fide passed the order dated October 31, 1968 terminating his services  with  effect from the date of the receipt  of  the order.  The order itself is dated October 31, 1968 passed by the  Governor  of  the  State  of  Haryana  terminating  the services  of the respondent from the date of the receipt  of the  order.  One month’s salary in lieu of notice  was  also ordered  to  be  paid.   The  respondent  was  directed   to relinquish  charge  of his post at once on  receipt  of  the order.   The  order  was  delivered  to  the  respondent  on November 1, 1968. The respondent filed a writ petition in the High Court chal- lenging the order dated October 31, 1968 on various ,rounds. According  to  him, the order is one by  way  of  punishment imposed  upon him and passed in violation of Art. 311(2)  of the  Constitution.  The order has been passed mala fide  and vindictively  by or at the instance of the  Chief  Minister, the  second  appellant,  in  collaboration  with  the  third appellant,  who was the Head of the Department, and both  of whom  had  become hostile and inimical to  him  without  any fault  of  his.  The post of State  Press  Liaison  Officer, which  was held by him, being a permanent post  included  in the  Public Relations Service of the State, his  appointment enured  for  the  duration  of the  post  and  as  such  the termination  of  his service on October 31, 1968,  when  the post  was still in existence, was illegal and  void.   Under the   Service   Rules,  governing   the   Public   Relations Department,  in which the post held by him was included,  no person  appointed  to  a post shall continue  to  remain  on probation  for more than three years.  He having worked  for over  II years, is to be deemed to be a  permanent  employee

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under  the Government of Haryana.  On all these grounds,  he prayed  for  quashing the order dated October  31,  1968  as illegal and void. It  will be seen from the averments, noted above,  that  the respondent attacked the order dated October 31, 1968 on  the round  that he was a permanent employee of the State  having been in the service of the, Public Relations Department  for over  II years and as such the termination of  his  services contravened Art. 311 (2 ) of the Constitution.  His  further case is that the post of State Press Liaison Officer,  which post he was occupying, was a permanent, post included in the Public  Relations  Service  of the State and  hence  he  was entitled  to hold the said post so long as the  post  itself was  in  existence.  He has also attacked the order  as  one passed  mala  fide by the Chief Minister  in  collusion  and collaboration  with  the Head of the Department,  the  third appellant.  The point 6--L500SuP.  CI/72 460 to  be noted is that the respondent rested his  case  almost entirely  on the post, that he was holding, namely, that  of State Press Liaison Officer. Both  the  Chief  Minister  as  well  as  the  Head  of  the Department  (third  appellant)  filed  separate  affidavits. While   the  Chief  Minister,  (second   appellant)   mainly controverted  the  allegation  of mala  fides  made  in  the petition  against  him,  the  third  appellant,  apart  from controverting the allegation of mala fides, also referred to the  various  other  averments made  in  the  writ  petition regarding  the  nature of the right in respect of  the  post occupied  by  the respondent.  As we have not  set  out  the allegation of mala fides made in the writ petition, we  are, also  not  referring  to  the averment  made  in  these  two affidavits  with regard to those allegations.  The  question of mala fides will be dealt with by us later.  But, it  must be  noted  that  the Chief Minister, in  his  affidavit  had stated  that the decision to terminate the services  of  the respondent  was taken by him on October 29, 1968 and not  on October  31, 1968, as alleged by the respondent.  After  the decision  was taken, necessary action was also taken by  the Administrative  Department  in  consultation  with  the  Law Department and the order was actually issued on October  31, 1968  .  He  has further stated that after he  had  taken  a decision  to  terminate the services of  the  respondent  on October  29, 1968, the file did not come to him  thereafter, nor did he have any occasion to talk to the Chief  Secretary or to the third appellant in connection with the same. The  Chief Minister has further stated that  the  respondent was  a temporary employee and as such his services could  be terminated  under the rules without assigning any reason  of giving  one  month’s notice or one month’s  salary  in  lieu thereof.   It  is further stated by him  that  the  impugned order  is valid and does not contravene Art. 311(2)  of  the Constitution,  as  no punishment has been inflicted  on  the respondent.   It has been further stated that  the  impugned order has been made bona fide and for purely  administrative reasons. The  second appellant, who had by then become the  Registrar of  Co-operative  Societies  and  Deputy  Secretary  to  the Government  in  the Panchayat Department,  very  strenuously controverted the allegation of mala fides made against  him. He further denied that he was in collusion or  collaboration with  the  Chief Minister, resulting in the passing  of  the impugned  order.  In his counter-affidavit he has stated  as follows :

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The  post  of  State Press Liaison  Officer  in  the  Public Relations  Department was created by the  Punjab  Government with  effect  from  June 22, 1957 and it was  to  last  till February  28,  1958.  By the gazette notification  of  July, 1962 the said post was not included 461 in the cadre of Public Relations Service.  By the said order no  new service was created, nor was the post  in  question, included  in  the cadre of post in the  Service.   Even  the initial appointment of the respondent as State Press Liaison Officer  was irregular, as it had been made in violation  of rules relating to recruitment to Government Service.  Though there  was only one post of State Press Liaison Officer  and the  respondent  was appointed. thereto, the said  post  was being continued by the Government on annual sanctions.   The respondent,  as long as he held the said post,  was  holding the same, on purely temporary basis as the post itself was a temporary post and continued from time to time.  The respon- dent’s  statement that he had been in service for more  than 11  years is correct, but his further averment that  he  has been all these years holding the post of State Press Liaison Officer  is not correct.  The respondent had gone  on  leave and  on  return he joined as Deputy Director in  the  Public Relations  Department.   The post of Deputy  Director  is  a cadre post.  The Public Service Commission took exception to his  appointment to the cadre post of Deputy Director.   The decision  to  terminate the respondent’s services  had  been taken  by the Chief Minister as early as October  29,  1968, though the orders were passed only on October 31, 1968.   As the  orders had to be served urgently on the respondent,  it was sent for service through a special messenger on November 1, 1968.  The respondent was a temporary employee,  inasmuch as  the  post occupied by him was itself  temporary,  having been created initially for one year and later extended  from time  to time.  The said post was held in abeyance for  four years from June 1962 to June 1966., during which period  the respondent was occupying the cadre post of Deputy  Director. As   the   Public  Service   Commission  objected   to   his appointment  as  Deputy Director, the post  of  State  Press Liaison Officer was revived and the respondent was appointed to  that  post in June 1966.  At no time was  he  ever  made permanent  by any order of the Government.  His  appointment to  the  post of State Press Liaison Officer  was  initially made  for one year and no special terms or  conditions  were stipulated.  The Government has got absolute power under the Service  Rules  to  terminate the services  of  a  temporary employee on giving one month’s notice without assigning  any reason.   Equally, the Government has got full power  to  so terminate the services of a temporary employee by giving one month’s  salary in lieu of notice.  The impugned  order  has been passed bona fide and due to administrative reasons.  In particular, it is further stated that the allegation of  the respondent that the post of State Press Liaison Officer  was permanent  and  that  the same was included  in  the  Public Relations  Service  of  the  State,  is  not  correct.   The respondents  further averment that he was appointed  to  the said  post  for the duration thereof is  baseless.   On  the other hand, the respondent wag a temporary emplo- 462 whose  services could be terminated in, the manner in  which it has been done.  The rules relied on by the respondent are not applicable either to him or to the post held by him.  As the  respondent  was  not appointed  against  any  permanent vacancy,  rule 10 of the Punjab Public Relations  Department (Gazetted)  Service Rules, 1958 (hereinafter to be  referred

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as the Gazetted Service Rules) do not apply. The  respondent  in his reply affidavit dated  February  19, 1969 reiterated that the post of State Press Liaison Officer had  been  included  in  the  cadre  of  the  Punjab  Public Relations Service by the gazette notification No.  6244-IPP- 62/14270 dated July 11, 1962 and he also filed a copy of the said   notification.   He  denied  the  allegation  of   the appellants  that the post, he was holding, was  a  temporary one  and  that he was holding the said post on  a  temporary basis.  On the other hand, by a reference to an order  bear- ing  on ’the same, he averred that his appointment  was  for the  duration of the post of State Press Liaison Officer  at Delhi and the post having been continued without any  break, and his appointment also having been automatically continued against  that post without any interruption, he had a  right to  hold the same so long as the post existed.  As the  said post  had  been included in the Gazetted Service  Rules,  in 1962 he also automatically became a permanent member of  the Service  under r. 10(3) of the said Rules, which applied  to the  cadre created by the notification.  He  further  denied that he was holding a temporary post and stated that he  was not aware of any orders passed extending the duration of the post on the basis of annual sanction.  He was also not aware of any objections raised by the Public Service Commission to his  appointment  as  Deputy  Director.  As  he  was  not  a temporary  employee,  the State has no  power  to  summarily terminate  his services in violation of Art. 311(2)  of  the Constitution. It  is  seen  that  on February 24,  1969,  the  High  Court permitted the respondent’s counsel to inspect the note  file titled  as  "termination  of services  of  Rajindra  Sareen" leading  to the passing of the impugned order.  On the  same day,  the respondent, along with his counsel, inspected  the file  in the presence of an officer of the Public  Relations Department  of the Government of Haryana.  After  inspection the  respondent filed a supplementary affidavit dated  March 10,  1969.  In this affidavit he refers elaborately  to  the various  notes made by different officers in the  said  note file  and averred that his allegations in the writ  petition that  the  order  has been passed mala  fide  by  the  Chief Minister  in  collusion  and collaboration  with  the  third appellant are fully borne out. On  March 25, 1969 the High Court passed an order  directing this supplementary affidavit of the respondent to be  placed on 463 record without prejudice to the rights of the appellants ’lo object  that  the note file is not relevant.   By  the  same order  the  Court  gave the appellants time  to  file  their counter-affidavits, if any. There  is no controversy that- the, Chief Minister  did  not file  any further counter-affidavit, though  allegations  of mala  fides  have  been repeated by the  respondent  in  his affidavit dated March 10, 1969.  The third appellant filed a counter-affidavit on April 12, 1969.  He also refers to  the order  passed by the High Court on March 25, 1969 taking  on record  the supplementary affidavit filed by the  respondent on  March  10, 1969 on the ’oasis of the inspection  of  the note file as per order, dated February 24, 1969.  The  third appellant   very   elaborately   again   controverted    the allegations  of  mala fides made against him and  the  Chief Minister. On  April  12,  1969 the third  appellant  again,  filed  an affidavit regarding the copy of the notification dated  July 11,  1962  filed  by the respondent  along  with  his  reply

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affidavit dated February 19, 1969.  The third appellant also averred that the said notification did not make the post  of State Press Liaison Officer a cadre post nor did it  include the  said post in the Punjab Public Relations Service.   The applicability  of the Gazetted Service Rules to, ’,lie  post held  by  the respondent was also denied.   It  was  further averred that the post- of State Press Liaison Officer,  held by  the respondent was an ex-cadre post and his  appointment had not been made with the concurrence of the Public Service Commission.   The appointment of the respondent to the  said post  having been made la 1957, his service  conditions  are not governed by the Gazetted Service Rules, which came  into existence only in 1968 and more specially when the said post was not mentioned in the appendix A of the said Rules. There was a further reply affidavit filed by the  respondent on  May 26, 1969 regarding the matter mentioned in  the  two affidavits  dated  April  12,  1969  filed  by  the,   third appellant.  The respondent reiterated his plea that the post of  State Press Liaison Officer, New Delhi, is a cadre  post and it has been treated as such ever since the  notification dated   July  11,  1962.   He  also  made  certain   further allegations against the third appellant to support his  plea of  mala fides.  He again pointed out that he was  appointed to,  the  post  of Deputy Director (Press)  in  a  permanent vacancy.   Even  assuming  that any  objections  have,  been raised by the Public Accounts Committee or the State  Public Service Commission to his appointment to the post of  Deputy Director  (Press), they have no bearing when the  State  had appointed him to the said post. Obviously,  in  view of the conflicting stand taken  by  the respondent  and the third appellant, in several  affidavits, referred to above, regarding the effect of the  notification dated July 11, 1962, in 464 respect  of  the post of State Press  Liaison  Officer,  New Delhi,  the  Division Bench of the High  Court,  during  the course  of the hearing of the writ petition passed an  order on  July  21, 1969.  In the said order the  High  Court  had referred  to the fact that the writ petition had been  heard on  several  occasions.  But,  nevertheless,  regarding  the point urged ’by the writ petitioner that he holds the status of a permanent government employee, in view of the fact that the  post  of State Press Liaison Officer, has been  made  a cadre  post  and  included in the  cadre  of  Punjab  Public Relations  Service as per notification dated July 11,  1962, requires,  according  to  the  High  Court,   clarification, specialty  when the writ petitioner had filed a copy of  the gazetted notification.  The High Court prima facie is of the view  that  the  said notification  created  a  new  service entitled Punjab Public Relations Service and that it  refers to  the various posts in the said Service, one of  which  is that  of  the State Press Liaison Officer, New  Delhi.   The High  Court adverted to the contention raised on  behalf  of the State that the said notification has not created any new Service nor has it made the post in question a cadre post. , The  High Court, in the circumstances, felt that  sufficient material has not been placed before it to enable it to  give a  finding  whether  a  new  Service  called  Punjab  Public Relations Service was created by the notification dated July 11,  1962,  and also as to the effect  of  the  notification about the nature of the post of State Press Liaison Officer. In  view  of  these circumstances, the High  Court  gave  an opportunity to the writ petitioner. as well as to the State, to  file  supplementary  affidavits  in  support  of   their respective  contentions and also to file documents, if  any,

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on  which the parties proposed to rely.  In particular,  the High  Court indicated that the counter-affidavits, that  may be filed on behalf of the State should include the affidavit of the then Chief Secretary who dealt with the matter at the material  time leading up to the issue of  the  notification dated July 11, 1962.  The High Court has also expressed  the opinion  that  if necessary they will have  to  examine  the officer,  who was at the material time, the Chief  Secretary in the State. In pursuance of the above direction given by the High Court, the  respondent,  the  third appellant as  well  as  certain officers  including the then Chief Secretary  filed  various affidavits.   But  it  is rather  strange  that  though  the directions  of  the High Court related only to the  post  of State   Press   Liaison   Officer,   the   controversy   was unfortunately  enlarged,  in  the  first  instance,  in  the affidavit  filed by the writ petitioner on July 21, 1969  as also  in the affidavits filed on behalf of the  State,  even regarding  the  nature  of  the  appointment  of  the   writ petitioner  to the post of Deputy Director (Press)  held  by him   from  June  27,  1962  to  June  14,  1966.   We   are particularly referring to this aspect as a contention 465 has  been  raised by Mr. Tarkunde, learned counsel  for  the appellants  that the writ petitioner has made a  shift  from the stand originally taken by him in the writ petition which related almost exclusively to the post held by him as  State Press Liaison Officer.  According to the learned counsel, in the  affidavits filed in pursuance of the order of the  High ’,Court  dated  July 21, 1969, the writ  petitioner  made  a further  claim  that  he  is entitled to  be  treated  as  a permanent  government servant in view of his appointment  to the post of Deputy Director (Press) which post was  occupied by him from June 27, 1962 to June 14, 1966 and on this basis lie had laid a claim to have become a permanent employee  of the  government  on  the basis of Rule 10  of  the  Gazetted Service  Rules.  The High Court has also ultimately  granted relief   to  the  writ  petitioner  on  the  basis  of   his appointment  to  the  post of Deputy  Director  (Press).  We understood  the counsel to urge that the High  Court  should not  have permitted the writ petitioner to claim  permanency on  the  basis of his having been  Deputy  Director  (Press) during the period mentioned above. Mr. Ramamurthy, learned counsel for the respondent, however, drew our attention to the averment made even in the original writ  petition  as  well as to the claim made  by  the  writ petitioner  of being a permanent government servant  on  the basis of Rule 10 of the Gazetted Service Rules.  This  stand was only clarified by him in his affidavit filed on July 21, 1969.  The State also did raise any objection at  any  stage before  the  High Court regarding the averment made  by  the writ  petitioner in the said affidavit.  On the other  hand, the  officers  of  the State had filed  very  elaborate  and detailed  affidavits  after July 21, 1969 dealing  with  the nature  of  the appointment of the writ petitioner’  to  the post  of Deputy Director (Press).  The State was well  aware of  the  foundation  of  the  claim  of  being  a  permanent government servant even on the basis of the post of the post of  Deputy Director (Press) held by the writ petitioner  and that  explains why no objection, similar to the one that  is now being raised before, this Court, was raised at any  time before the High Court. Though  we see considerable force in the contention  of  Mr. Tarkunde that the original claim made by the writ petitioner has been enlarged by the affidavit filed by him on July  21,

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1969,  there  is nothing on record to show  that  the  State raised any objection in the various affidavits filed by  its officers  after this date, that the writ petitioner was  not entitled to base a claim of being a permanent servant on the basis of his having held the post of Deputy Director (Press) for  over  four years.  On the other hand,  they  also  very elaborately   controverted  the  claim  made  by  the   writ petitioner and gave their own versions regarding the  nature of  the right of the writ petitioner in respect of the  said post also.  That 466 clearly shows that they have also met the claim made by  the writ  petitioner  on the basis of his having been  a  Deputy Director (Press) in the service of the then State of Punjab. It is further seen from the judgment of the High Court  that very  elaborate arguments were advanced by both the  parties even  in  respect  of this  post.   Therefore,  under  those circumstances,  we are of the opinion that the State  cannot have  any  real  grievance  that  the  High  Court  was  not justified  in granting any relief to the writ petitioner  on the  basis  of his having held ’he post of  Deputy  Director (Press), if he was otherwise entitled to make such a  claim. As to whether the High Court’s view on the interpretation of Rule  10  of the Gazetted Service Rules in relation  to  the writ petitioner’s appointment as Deputy Director is  correct or  not, is a totally different matter and that aspect  will be considered by us in the later part of the judgment. To  resume the narration of facts, the respondent  filed  an affidavit on July 21, 1969 on the basis of the High  Court’s order  of  the  same date, referred  to  earlier.   In  this affidavit, for the first time, he raised the contention that he was appointed on June 27, 1962 as Deputy Director (Press) which is a permanent post included in the appendix A of  the Gazetted  Service  Rules.  His claim was that the  order  of appointment  dated  June 6, 1962 made no  mention  that  his appointment as Deputy Director Press was ,on a temporary  or officiating  basis.  He further averred that on the date  of his  appointment  as Deputy Director the then  incumbent  of that  post  Mr.  Rajendra Nath had been  promoted  as  Joint Director  Public Relations, a new post created by the  order dated June 21, 1962.  As Mr. Rajendra Nath had been promoted to  a  permanent  post of  Joint  Director,  the  respondent claimed that his appointment as Deputy Director on June  27, 1962 was against a permanent vacancy, in a permanent post in the  Punjab Relations Service.  As he continued in the  said post  for  over  4 years, he had acquired the  status  of  a permanent  employee by virtue of Rule 10(3) of the  Gazetted Service  Rules.  The respondent further averred that by  the notification  dated  July  11, 1962 a new  service  by  name Punjab Public Relations Service was created and the post  of State  Press  Liaison  Officer was made  a  cadre  post  and included in the said Service Cadre. It will be seen from the above affidavit that for the  first time  he  specifically  made  a claim  of  having  become  a permanent  government  servant  by  virtue  of  his   having occupied  the  post of Deputy Director (Press)  for  over  4 years  and for this purpose he relied on Rule 10(3)  of  the Gazetted Service Rules. Mr. E. N. Mangat Rai, I.C.S., who was the Chief Secretary to the Government of Punjab at the time when the notification 467 dated July 11, 1962 was issued, filed an affidavit on August 7,  1969.  He had set out the circumstances under which  the said notification was issued.  But he had admitted that  the original draft of the notification was not available in  the

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concerned  file.   According  to the  Chief  Secretary,  the notification  dated  July 11, 1962 did not  create  any  new service  but  it only changed the name of the  service  from Punjab  Public  Relations Department (Gazetted  Service)  to Punjab  Public Relations Service and the  notification  only classified the posts in the said service into Classes 1  and 11.   It  added  also certain other  posts  in  the  service including that of the.  State Press Liaison Officer.  He has further  referred to the fact that a particular service  may contain posts, both temporary as well as permanent and  that the  post  of State Press Liaison Officer  was  a  temporary post. Another  officer  Mr. K. D. Vasudeva, I.A.S.,  who  was  the Deputy  Secretary, at the time when the  above  notification was  issued, also filed an affidavit dated August  8,  1969. Broadly,  he adopted as correct the averments made  ’by  the Chief Secretary in his affidavit and reiterated that no  new service  was created by the said notification and  that  the post  of  State Press Liaison Officer was not made  a  cadre post. The  third  appellant  also filed a  detailed  affidavit  on August  8,  1969.  He controverted the  allegations  of  the respondent   that  the  latter  had  been  appointed  to   a substantive  vacancy as Deputy Director (Press) and that  he had  thus  acquired  the status of  a  permanent  government servant  having been in that post for over four  years.   He averred that the respondent so ’on,, as he occupied the post of  Deputy  Director  (Press)  held  the  same  only  in  an officiating  capacity.  In this connection he relied on  the pay  slips  issued  by the  Accountant  General  authorising disbursement  of salary to the respondent describing him  as an  officiating  Deputy Director (Press).   It  was  further averred  by  the said officer the the respondent  could  not have  been  appointed as Deputy Director (Press)  against  a permanent vacancy as Rajendra Nath, who was holding the said post  had  been  promoted as Joint  Director,  Which  was  a temporary  post.   The  post of Joint  Director,  which  was created on temporary basis on June 21, 1962 continued to  be so  till September, 1968.  During the period  when  Rajendra Nath was working in the temporary post of Joint Director  he was retaining his lien on his permanent post, namely, Deputy Director  (Press) to which the respondent was  appointed  on June 27, 1962. The,  third appellant further averred that in the year  1962 there were only two permanent posts of Deputy Directors; one incharge of Press and another of field.  The post of  Deputy Director (Press) was then held by Rajendra Nath on permanent basis  since September 3, 1958 and he was promoted as  Joint Director, which was a 468 temporary  post.   The post of Deputy Director  (field)  was occupied   by  Mrs.  A.  Mardhekar  since  March  2,   1960. Therefore,  in June 1962, when the respondent was posted  as Deputy  Director (Press) there was no permanent  vacancy  in the  said  post.   In view of these  circumstances,  it  was further  averred that the appointment of the respondent  was only  on a purely officiating or temporary basis and he  was not  entitled  to  invoke Rule 10 of  the  Gazetted  Service Rules. Dealing  with the post of State Press Liaison  Officer,  the third  appellant,  adopted  the stand  taken  by  the  Chief Secretary  that  the  notification of July,  1962,  did  not create  any new service and that, it did not also  make  the post  of  State  Press Liaison Officer  a  cadre  post.   He further  averred  that the respondent cannot claim  to  have

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become a permanent government servant by having occupied the post  of State Press Liaison Officer, which was a  temporary post.   In  fact he further averred  that  the  notification dated July 11, 1962 was not in accordance with the proposals made   by  the  Director  or  the  decision  taken  by   the Government. Mr. R. S. Verma, I.A.S., Deputy Secretary to the  Government of Haryana, Public Relations Department, filed an  affidavit dated August 27, 1969.  In this affidavit he has stated that he has examined the files connected with the posts  included in  the  cadre shown in Appendix A of the  Gazetted  Service Rules.  He has referred to the fact that though the post  of Administrative  Officer is shown in the said Appendix  as  a cadre  post,  that  post  continued  to  be  temporary  till September  25,  1964, on which date it was  made  permanent. Regarding  the  notification dated July 11, 1962,  he  again referred  to the fact that the post of State  Press  Liaison Officer  had  all along been temporary and  it was  held  in abeyance from June 1962 till June 1966 and that there was no order of the Government making the post a permanent one.  He has again reiterated that there was no permanent vacancy  of Deputy  Director  (Press) in 1962 when  the  respondent  was appointed as Mr. Rajendra Nath had a lien on the said  post. In  particular,  he  has stated that at  the  time  of  the, appointment of the respondent as Deputy Director (Press)  in June,  1962 by notification dated June 6, 1962,  there  were two other posts of Deputy Directors; one for Deputy Director (Field)  and  the  other  for  Deputy  Director   (Publicity Material).  The post of Deputy ’Director (Field) was held by Mrs.  A. Mardhekar.  The post of Deputy Director  (Publicity Material)  was  a temporary post and it was  made  permanent only in 1964. The respondent filed his reply affidavit on August 29, 1969. Naturally he took advantage of the averment contained in the affidavit  of Mr. R. S. Verma to the effect that there  were three 469 posts  of  Deputy  Directors, namely, of  Press,  Field  and Publicity  Material  at the time when he  was  appointed  as Deputy  Director  (Press)  in  1962.   He  has  also   taken advantage of the further fact stated by Mr. R. S. Verma that the  post of Deputy Director (Publicity Material)  was  made permanent  from April 1, 1964.  Based upon these facts,  the respondent pleaded that he having been appointed to the post of  Deputy  Director (Press) on June 27,  1962,  and  having completed  three  years of service on June 27, 1965  in  the said post, he became a permanent employee of the  Government as  Deputy Director in the Punjab Public Relations  Service, under  the  proviso to Rule 10(3) of  the  Gazetted  Service Rules.   He relied on this rule in support of his plea  that at  any  rate, there was a clear permanent  vacancy  in  the third  permanent post of Deputy Director, with  effect  from April  1,  1964, in which vacancy he could be  confirmed  on June  27, 1965, having completed three years of  service  as Deputy Director.  In particular, he relied on the proviso to Rule  10(3)  of  the Gazetted  Service  Rules.   He  further averred that the fact that Mi.  Rajendra Nath had a lien  on the post of Deputy Director (Press) is of no consequence  so far as he was concerned as he could be made permanent in the third  post  of  Deputy Director,  namely,  Deputy  Director (Publicity Material) . We  have  elaborately referred ’to  the  various  affidavits filed on behalf of the State as well as by the respondent as full particulars regarding the claim made by the  respondent and  the stand taken on behalf of the State has  been  fully

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dealt with in those affidavits. Before the High Court it was conceded by the learned counsel appearing  for  the  State that if the plea  of  mala  fides alleged  against the Chief Minister and the third  appellant herein, was accepted, ’the impugned order should be  quashed straightaway.   Therefore,  the High  Court  considered  the question regarding the impugned order being vitiated by mala fides, in the first instance. So  far as the Chief Minister was concerned, the  respondent had  alleged  four incidents which  caused  misunderstanding between him and the Chief Minister and, therefore, the order was passed by him in collusion with the third appellant mala fide.  But so far as the fourth incident was concerned, that related  to the respondent’s alleged failure to arrange  for publication of a declaration made by Shri Nijalingappa,  the Congress  President,  at  Faridabad  on  October  30,  1968, assuring  his support to the Ministry headed by  the  second appellant.  According to the respondent, the Chief  Minister was  greatly  upset over the absence of the  declaration  of Shri  Nijalingappa  in the Delhi newspapers on  October  31, 1968.   In  view  of  this  the  Chief  Minister  rushed  to Chandigarh  the same day and passed the order  removing  him from service. 470 The  Chief  Minister denied This allegation and  has  stated that   the  decision  to  terminate  the  service   of   the respondent,  had been taken by him even as early as  October 29,  1968  and  that  the formal order  was  issued  by  the concerned Department on October 31, 1968.  This statement of the  Chief Minister has been accepted by the High Court  and therefore,  the  allegation  of mala  fides  regarding  this fourth  incident is groundless, because whatever may or  may not have happened on October 31, 1968 between the respondent and  the  Chief  Minister, the  decision  to  terminate  his services had been taken as early as October 29, 1968. The  respondent  then relied on three  other  incidents,  in which, according to him, he had come into conflict with  the Chief   Minister.   The  High  Court  has   considered   the explanation  given by the Chief Minister.  Though  the  High Court  has  stated that the explanation given by  the  Chief Minister  is disingenuous and that it is prepared  to  place more reliance on the version as spoken to by the respondent, ultimately  the  High Court has held that the plea  of  mala fides is not established.  In coming to this conclusion,  it has  no doubt taken each incident ’by itself and recorded  a finding against the plea of mala fides. Regarding the third appellant, there was only one  incident, which,  according  to  the  respondent,  brought  him   into conflict  with the third appellant who-was then Head of  the Department.   Even here, the High Court is of the view  that there  is  a  substratum  of truth in  the  version  of  the respondent   regarding  the  incident,  which   must-   have prejudiced the mind of the third appellant.  But,  according to  the High Court that incident by itself does not lead  to the  conclusion that the third respondent has colluded  with the  Chief Minister in passing the impugned order.   On  the above  grounds,  ’the High Court rejected the  plea  of  ’he respondent  that  the impugned order has  been  passed  mala fides. The  High Court then considered the claim of the  respondent that  he  had become a permanent member of  the  Service  by virtue  of his appointment as Deputy Director  (Press)  with effect  from  June 27, 1962.  The High Court relied  on  the Proviso to, Rule 10(3) of the Gazetted Service Rules and  is of  the view that inasmuch as even according to  the  State,

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the  third post of Deputy Director (Publicity Material)  had become  a permanent post on April 1, 1964, , the  respondent on completion of three years of service from June 27,  1962, had  become  a  permanent  Deputy Director  and  as  such  a permanent  employee  of the Government.  It is  the  further view  of the High Court that the fact that at the time  when the  respondent was appointed as Deputy Director (Press)  on June  27, 1962, Mr. Rajendra Nath, who had been promoted  as Joint  Director,  had  a lien on his former  post,  was  not relevant 471 as  ’the third post of Deputy Director (Publicity  Material) was available and to that post the respondent had  acquired, a right at the end of three years from June 27, 1962.  As he had  become  a  permanent employee of  the  Government,  the termination of his services was in violation of Art.  311(2) of the Constitution. Regarding  the claim of the respondent that his  appointment to  the post of State Press Liaison Officer  is  co-terminus with  the  existence of the post, the High Court is  of  the view that as the post itself was being renewed from year  to year,  the respondent can. at the most be held  entitled  to continue in that post till February 28, 1969.  According ’to the  High  Court  the State has no power  to  terminate  the services  of  the  respondent, when the post  was  still  in existence. For  the  above reasons, the High Court  quashed  the  order dated October 31, 1968. From the facts stated above, as well as the findings of  the High Court, the following questions arise for  consideration in  the appeal : (1) whether the impugned order is  vitiated by mala fides; (2) whether the respondent became a permanent Government  servant  on his appointment as  Deputy  Director (Press)  with  effect from June 27, 1962 on  the  expiry  of three  years, namely, June 27, 1965; and (3) the  nature  of the  right  that the respondent had as State  Press  Liaison Officer. We  are  aware  that  if once  the  respondent  is  able  to establish that the impugned order is vitiated by mala fides, on  the  part  of the second and the  third  appellants,  no further question will arise.  Therefore, though the  finding of  mala fides is in favour of the appellants, we  permitted Mr.  Ramamurthy,  learned  counsel for  the  respondent,  to convass the correctness of the finding recorded against  his client  on this question by the High Court.  Though  we  are not  satisfied with the approach made by the High  Court  in dealing  with  the  allegation of mala  fides  made  by  the respondent,  ultimately,  after  going  through  the  entire materials placed before us and after hearing the contentions of the learned counsel on both sides, we are of the  opinion that the conclusion arrived at by the High Court is correct. It  is  not possible to accept ’the plea of  the  respondent that  the  impugned order has been passed mala fide  by  the second appellant, in collusion with or in collaboration with the  third  appellant.  Nor are we satisfied that  the  said order  has been passed by the second appellant, actuated  by malice and ill-will against the respondent.  But we must say that  the  record  does show  that  certain  incidents  have happened, which must have resulted in some  misunderstanding between  the  respondent  on the one  hand,  and  the  Chief Minister  and  the third appellant on  the  other.   Certain incidents have been 472 placed  on  record which will show that the  respondent  may have incurred the displeasure of the second appellant.   But

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that circumstance, by itself, cannot lead to the  conclusion that the impugned order has been passed mala fide. Why  we are saying that the approach made by the High  Court in  this regard in considering the allegation of mala  fides is  not  proper  is  that the, High  Court  has  taken  each allegation by itself and has held that it is not  sufficient to  establish mala fides.  The proper approach  should  have been  to consider all the allegations together and find  out whether  those  allegations have been made out  and  whether those allegations when established, are sufficient to  prove malice  or ill-will on the part of the  official  concerned, and whether the impugned order is the result of such  malice or  ill-will.   We are emphasising this  aspect  because  in certain cases even a single allegation, if established, will be so serious to lead ,to an inference of mala fides.   But, in   certain  cases  each  individual  allegation,   treated separately, may not lead to an inference of mala fides;  but when all the allegations are taken together and found to  be established,  then  the  inference to be  drawn  from  those established  facts may lead to the conclusion that an  order has  been  passed  male fide, out of  personal  ill-will  or malice.  The incidents, referred to by ’the respondent,  due to  which the Chief Minister is alleged to have  acted  mala fide,  in passing the impugned order, in our opinion,  taken individually or collectively, cannot lead to the  conclusion that  the  order has been passed out of malice  or  ill-will Even  accepting that the incidents took place in the  manner alleged  by him, it is not possible to hold that the  Chief, Minister  has  acted with malice when passing  the  impugned order.   The allegations made by the respondent, as well  as the  denial of those allegations by the Chief  Minister  and the  third appellant are dealt with by us in the later  part of the judgment. We have already referred to the fact that the respondent had made  four  allegations against the Chief Minister,  on  the basis  of which he alleged that the impugned order had  been passed  mala fide.  We have also referred to the  fact  that the fourth incident relating to the non-publication of  the, declaration made by the Congress President Sri  Nijalingappa on  October 31, 1968.  The respondent’s allegation was  that the  Chief Minister was anxious that the statement  made  by Sri  Nijalingappa  regarding  his support  to  the  Ministry headed  by the second appellant should be published  in  all the daily newspapers in Delhi on the morning of October  31, 1968, itself and when the news item was not so published, he got annoyed.  It is the further case of the, respondent that in  view of the fact that the Chief Minister was  very  much annoyed,  he  rushed  to Chandigarh and  had  the  order  of termination passed forthwith.  So far as this is  concerned, the Chief 473 Minister’s statement that he had already taken the  decision to  terminate the services of the respondent on October  29, 1968,  has  been  accepted by the High Court.   It  so,  the incident  mentioned above, which took place later,  even  if true, could not have influenced the Chief Minister. We will now refer to the three other allegations made by the respondent against the Chief Minister.  The first allegation was  that  he  had incurred the  displeasure  of  the  Chief Minister  in  connection with a Press Conference  the  Chief Minister  had  in  Delhi after  assuming  office.   In  that conference, according to the respondent, the Chief  Minister made  a statement that personally he was not convinced  that the  interest of the State of Haryana required inclusion  of Chandigarh  in that State.  The respondent appears  to  have

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suggested  that  such a statement should not appear  in  the Press, as it will have very serious political repercussions. The  second appellant, though be resented the advice of  the respondent, agreed to have that observation to be deleted by the Press correspondent.  This incident took place  sometime in  early  June, 1968.  The Chief Minister has  denied  this incident.  The second cause for unpleasantness of the  Chief Minister,  according to the respondent, arose on  his  close association  with  Mr.  G.  L.  Nanda.   According  to   the respondent, the Chief Minister had told him, after  assuming office  that Mr. G. L. Nanda is his Guru and that he  should act in Delhi according to Mr. Nanda’s advice.  But, later on by  about August, 1968, the relationship between  Mr.  Nanda and the Chief Minister became strained, but the  respondent, however, wag friendly with Mr. Nanda.  This association with Mr.  Nanda  was resented by the Chief Minister.   The  Chief Minister  has  stated that he had always held Mr.  Nanda  in high esteem and that ha had no occasion to become unfriendly with Mr. Nanda in his personal relationship.  He has further stated  that  he  had no occasion to  find  fault  with  the respondent  for  being friendly with Mr. Nanda.   The  third allegation  made against the Chief Minister was that  on  or about June 23, 1968, the Chief Minister had a talk with  him from  Srinagar  on  telephone  and  the  former  desired  an appointment  for him with the Editors of the  Statesman  and the  Times of India, New Delhi, in order to explain to  them that  their  correspondents  at  Chandigarh  were  not  very friendly to the Government, headed by him.  According to the respondent,  he  requested the Chief Minister not  to  adopt this  course as it will only irritate the Press.  The  Chief Minister  got annoyed and ended- the  conversation  abruptly saying  "do  as you like".  The Chief  Minister  has  denied having  had  any  such  talk  on  the  telephone  with   the respondent.   The respondent, no doubt, made an  application to the High Court for having the necessary records  produced from  the Telephone Department and also to summon the  Chief Minister  for cross examination.  We have gone  through  the application.  According 474 to   the  averments  made  in  the  said  application,   the respondent  wanted to cross-examine the Chief Minister,  not only  about  the telephone conversation but  also  on  other matters.   However,  the  High Court  did  not  consider  it necessary  to order that application as in its  opinion  the allegations were not such, even if true, to make out a  case of mala fides. From  the above three incidents, the respondent desires  the Court to draw an allegation of mala fides against the  Chief Minister. Mr.  Ramamurthy,  learned counsel for the  respondent,  very strenuously  pressed that these allegations which have  been accepted  by the High Court though in a qualified manner  as true,  taken  along  with  the remarks  made  by  the  Chief Minister  in  the note file, will clearly show that  he  has acted mala fide.  So far as the note file is concerned, that is  being discussed a little more elaborately when  we  deal with   the  allegation  of  mala  fide  against  the   third appellant.  But in the note file, the Chief Minister has, no doubt,  expressed  his views about the quality of  the  work turned out by the respondent, which he as Chief Minister was certainly entitled to do, in his official capacity. So  far  as  the three incidents,  referred  to  above,  are concerned,  in our opinion, none of them, either  considered separately  or  all of them  considered  cumulatively,  will establish  any personal prejudice or malice on the  part  of

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the  Chief  Minister  against  the  respondent.   The   last incident  referred to above is the telephone talk stated  to have taken place on June 23, 1968, but the order terminating the  services of the respondent was passed only  on  October 31,  1968,  in respect of which the decision  was  taken  on October  29, 1968.  We are satisfied that the plea  of  mala fides  alleged by the respondent against the Chief  Minister has not been made out by the respondent. So  far as the third appellants concerned, the  position  of the  respondent  is still worse.  The  respondent  does  not allege any personal ill-will against him.  His allegation is that the third appellant was taking decision against him  so as  to conform to the opinion formed by the  Chief  Minister out of prejudice against the respondent.  As we have already pointed  out  that the respondent has referred to  only  one incident and that related to the displeasure alleged to have been shown by the third appellant at the time of passing the Traveling  Allowance bills of the respondent.  According  to the respondent, the third appellant did not like the  manner in  which  he answered some of the queries relating  to  the bills and therefore he initiated a note on October 24, 1968, on the basis of which a final order terminating his services was passed by the Chief Minister.  It was this note that the High  Court allowed the respondent to inspect by  its  order dated February 24, 1969.  The 475 respondent  has  filed  a further affidavit  and  the  third appellant  has  also  denied  the  statements  made  by  the respondent.   The main attack against the note  file  titled "termination  of  the services of Rajindra Sareen"  is  that when considering a claim made by the respondent for a higher allowance,  the third appellant had no power to suggest  the termination  of the post held by the respondent as  well  as the termination of his services. The  third  appellant has filed a very  elaborate  affidavit detailing  the  circumstances  under which  the  note  dated October  24,  1968 was prepared by him.   From  the  various matters  referred to in his affidavit, it is clear that  the Public  Service  Commission  had raised  objections  to  the appointment of the respondent as Deputy Director (Press) and the  Public  Accounts  Committee  had  also  criticised  the Government  for appointing the respondent to the said  post. The   Public  Accounts  Committee  had  again  desired   the Government  to  give  a  fuller  explanation  regarding  the circumstances  under which the respondent was  appointed  as Deputy  Director as also in respect of the various  benefits granted  to  him.  Therefore when a claim was  made  by  the respondent for a higher allowance, the third appellant,  who was  then the Head of the Department, had been  directed  to look  into  all  these  matters  for  the  guidance  of  the Government.  It was under those circumstances that the third appellant had prepared the note dated October 24, 1968.  Any observations  made in the note by the third appellant,  who, was  the  Head  of  the Department  or  the  Chief  Minister regarding   their  views  about  the  performance   of   the respondent,  in the post held by him. were all within  their powers   and  jurisdiction  in  their   official   capacity. Therefore, the allegation of mala fides alleged against  the third appellant has also to be rejected.  Unfortunately, the High  Court   has not gone into the several aspects  in  the manner  indicated above.  We must also state that in  coming to the conclusion that the plea of mala fides alleged by the respondent  against  the  second and  the  third  appellants cannot  be  accepted, we have borne in mind  the  principles laid  down by this Court in S. Pratap Sing v. The  State  of

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Punjab (1). The  second point that has to be considered relates  to  the claim  of  the  respondent  of  having  become  a  permanent government  servant  on  the expiry of three  years  of  his continuing  in  the  post of Deputy  Director  (Press)  with effect  from  June 27, 1962.  The learned  counsel  for  the state  invited  our attention to the definition  of  certain expressions  contained  in the Punjab Civil  Services  Rules (hereinafter  to be, referred as the Civil  Services  Rules) which came into force from April 1, 1953.  The counsel  also drew  our  attention  to the provisions of Rule  10  of  the Gazetted  Service  Rules  and  pointed  out  that  when  the respondent was appointed as Deputy (1) [1964]4 S.C.R. 733. 17-L500 SupCI/72 476 Director  (Press) on June 27, 1962, Rajendra Nath,  who  was holding  that post, had been promoted to the temporary  post of  Joint Director and Rajendra Nath had a lien on the  post of  Deputy Director (Press).  Therefore, he  contended  that the  respondent cannot be considered to have been  appointed against  a  permanent  vacancy,  in  order  to  attract  the provisions  of  Rule 10 of the Gazetted Service  Rules.   He referred  us  to  the pay slips  issued  by  the  Accountant General, describing the respondent as an officiating  Deputy Director,  as well as the objections that were being  raised by  the  Public Service Commission and the  Public  Accounts Committee to the respondent being posted as Deputy  Director (Press).  The fact that in 1964 the post of Deputy  Director (Publicity Material) was made permanent will not entitle the respondent  to invoke the provisions of the Proviso to  Rule 10(3) of the Gazetted Service Rules. Mr.  Ramamurthy, learned counsel for the respondent, on  the other hand, contended that under Rule 9 (b) of the  Gazetted Service Rules, one of the mode of recruitment to the post of Deputy  Director is by transfer of a person already  in  the service of the State or of the Union.  It is admitted by Mr. R.  S. Verma that the appointment of the respondent  to  the post  of  Deputy  Director (Press)  was  by  transfer.   The counsel  pointed out that there is no controversy  that  the respondent  was  at  that time already  in  service  of  the Government.    The  Government,  which  is  the   appointing authority  under  Rule  6 of  the  Gazetted  Service  Rules, appointed  the respondent as Deputy Director (Press).   That post  was  a  permanent post and included in  the  cadre  in Appendix A of the Gazetted Service Rules, and it is a  cadre post.   In view of all the circumstances, he urged that  the appointment  of  the respondent as Deputy Director  must  be considered to be an appointment against a permanent  vacancy under Rule 10(1) of the Gazetted Service Rules.  Even on the basis  that  Mr.  Rajendra Nath had a lien on  the  post  of Deputy Director (Press), he urged that even according to the State, the post of Deputy Director (Publicity Material)  had been made permanent on April 1, 1964.  Under the Proviso  to Rule  10(3) of the Gazetted Service Rules, the total  period of probation cannot exceed three years, if there is a perma- nent  vacancy  in the post.  The  respondent  had  completed three  years of service as Deputy Director (Press)  on  June 27,  1965 and as there was on that date a permanent post  of Deputy  Director  (Publicity Material), the  respondent  has become a permanent member of the Service. We  are not inclined to accept the contentions of Mr.  Rama- murthy.   We  have  already  held  that  the  plea  of   the respondent that he became a permanent Government servant  on his  holding the post of Deputy Director (Press)  for  three

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years, was raised 477 more  or  less  for the first time only when  he  filed  his affidavit  on July 27, 1969.  But, again as already  stated, both  parties have joined issue on this point and invited  a decision  by the High Court.  We have also very  extensively referred  earlier to the pleas set up by the respondent  and on  behalf  of  the State in the  various  affidavits,  and, therefore,  it is not necessary for us to cover  the  ground over again.  The stand taken by the respondent is clear  and that  is that lie has become a permanent Government  servant on his completing three years as Deputy Director (Press) and that  claim  is based on the Proviso to Rule  10(3)  of  the Gazetted Service Rules.  It is necessary now to refer to the definitions  of certain expressions contained in  the  Civil Services  Rules.   These  Rules  have  been  issued  by  the Governor  under the Proviso to Art. 309 of the  Constitution and have come into force from April 1, 1953. Rule 2.9 defines "cadre " as the strength of a service or  a part of a service sanctioned as a separate unit.  Rule  2.42 defines the expression "Officiate" as follows :                 "2.42.  Officiate.   A  Government   servant               officiates  in  a post when  he  performs  the               duties of a post on which another person holds               a  lien.   A competent authority  may,  if  it               thinks  fit, appoint a Government  servant  to               officiate  in a vacant post on which no  other               Government servant holds a lien."               The  expression "Permanent post"  under  Rule-               2.46 means               "  A  post  carrying a definite  rate  of  pay               sanctioned without limit of time."               The  expression  "Probationer" is  defined  in               Rule 2.49 as follows:               "Probationer   means  a   Government   servant               employed   on  probation  in  or   against   a               substantive   vacancy  in  the  cadre   of   a               department.   This  term  does  not,  however,                             cover   a   Government   servant   who     holds               substantively a permanent post in a cadre  and               is merely appointed "on probation" to  another               post."                Under  the heading  "Substantive  Appointment               and Lien" Rule 3.11 (c)   states as follows                "3.11.  (c)  A Government servant  cannot  be               appointed  substantively  to a post  on  which               another Government servant holds a lien." Rule  3.14 gives power to a competent authority  to  suspend the lien of a Government servant on a permanent post in  the circumstances mentioned therein. Now coming to the Gazetted Service Rules may have also been framed by tile Governor under the proviso   to Art.   309 of the 478 Constitution.   They  have been framed  for  regulating  the recruitment  and conditions of service of persons  appointed to   the  Punjab  Public  Relations  Department   (Gazetted) Service. Rule  2  defines  the  expression  "Direct  Appointment"  as follows               "Direct appointment" means an appointment made               otherwise than by promotion within the Service               or by transfer of any official already in  the               service of the Government of a State or of the

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             Union." Clause (c) defines "Service" as the Punjab Public  Relations Department (Gazetted) Service. Part  11  deals with the Posts and Qualifications.   Rule  3 dealing with the number and character of posts is as follows :               "(3)  Nuniber  and Character-  of  posts:  The               Service  shall  comprise the  posts  shown  in               Appendix  ’A’ to these rules :  Provided  that               nothing in these rules shall affect the  right               of  Government to make additions to or  reduc-               tions  in  the number of  such  posts  whether               permanently or temporarily." Appendix  ’A’  referred  to in  the  said  Rules  enumerates various  posts.   The post of Deputy Directors  (Press)  and Deputy Director (Field’) are included. in the said Appendix. But  it  must be noted that under Rule 3 the  right  of  the Government  to make additions or reduction in the number  of posts,  enumerated  in Appendix ’A’ whether  permanently  or temporarily is preserved. Part III deals with "Appointment".  Rule 6 provides ,bat all appointments  to posts in the Service shall be made  by  the Government.   Rule  8 deals with qualifications  of  persons recruited  to  the Service by direct  appointment.   Rule  9 deals with the method of recruitment and cl. (b) deals  with recruitment  in the case of Deputy Directors.  In this  case we  have  already  mentioned that Mr. R. S.  Verma,  in  his affidavit has accepted that the respondent was appointed  to the post of Deputy Director (Press) by transfer.  Rule 10 on which very strong reliance has been placed on behalf of  the respondent is as follows               "(10)  Probation.-(1) Members of the  Service.               who are appointed against permanent vacancies,               shall,  on  appointment  to any  post  in  the               Service, remain Oil probation for a period  of               two years in the case of members recruited  by               direct  appointment, and one year in the  case               of members recruited otherwise :               479               Provided that the period of Service spent  oil               deputation  or on a corresponding or a  higher               post  may  be  allowed to  count  towards  the               period of probation fixed under this rule.                (2)  If  the  work or conduct of  any  member               during     his period of probation is, in  the               opinion    of   appointing    authority    not               satisfactory,  the  appointing  authority  may               dispense  with his services or revert  him  to               his  former  post  if he  has  been  recruited               otherwise than by direct appointment.                (3)  On  the  completion  of  the  period  of               probation  of   any  member   the   appointing               authority  may  confirm such  members  in  his               appointment or, if his work and conduct  have,               in  the opinion of the  appointing  authority,               not  been  satisfactory,  dispense  with   his               services  or revert him to his former post  if               he  has  been  recruited  otherwise  than  ’by               direct  appointment  or extend the  period  of               probation  and thereafter pass such orders  as               it  could  have passed on the  expiry  of  the               original period of probation.               Provided  that the total period  of  probation               including extensions, if any, shall not extend               three  years it there is a  permanent  vacancy

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             against which such member can be confirmed." There  is  no controversy that the past of  Deputy  Director (Press)  is a permanent cadre post.  The respondent  was  an officer on Special Duty from September 20, 1960 to June  26, 1962. On June 6, 1962, the respondent, who was an officer on Special  Duty  was  posted  by way  of  transfer  as  Deputy Director (Press) Chandigarh in place of Mr. Rajendra Nath by the  same  order  Mr. Rajendra Nath,  who  was  then  Deputy Director  (Press)  was posted by way of  transfer  as  State Press  Liaison  Officer,  Delhi.   On  June  21,  1962   the Government created one post of Joint Director in the  Public Relations and Tourism Department lit New Delhi till February 28,  1963.  The same order directed that the post  of  State Press Liaison Officer, New Delhi, shall be held in abeyance. On July 30, 1962 the Governor passed an order appointing the respondent as Deputy Director (Press) with effect from  June 27, 1962.  By the same order Mr. Rajendra Nath, who was then holding the post of Deputy Director (Press) was appointed as Joint  Director, Public Relations Department,  Delhi,  which post was created temporarily by order dated June 21, 1962. The  third  appellant as well as Mr. R. S. Verma  have  both stated  in ’their affidavits, referred to earlier, that  Mr. Rajendra Nath when he was promoted to the temporary post  of Joint Direc- 480 tor  at  New  Delhi, had his lien  on  his  permanent  post, namely,  Deputy  Director (Press).  This statement  has  not been contradicted by the respondent.  On the other hand, the stand  taken  by him is that in spite of Mr.  Rajendra  Nath having  a  lien  on the post. lie  has  become  a  permanent Government servant when he held the post of Deputy  Director (Press) continuously for three years. especially when  there was  another  permanent post of Deputy  Director  (Publicity Material).   There is no controversy that the post of  State Press Liaison Officer, New Delhi, was kept in abeyance  from June 27, 1962 to June 14, 1966, corresponding to the  period when  the respondent was Deputy Director (Press).  The  post of  Joint Director, created temporarily by order dated  June 21,  1962  was made permanent only in September,  1968.   On August  8, 1962 the Governor again passed an order that  the ’three  posts  of Deputy Director (Press),  Deputy  Director (Field’)  and  Deputy  Director  (Publicity  Material)   and certain other posts mentioned therein, are inter-changeable. But the post of Deputy Director Publicity Material) was only a temporary post when the respondent was appointed as Deputy Director (Press); and it was made permanent only on April 1, 1964.   But Mr. Rajendra Nath continued to have his lien  on the  post  of Deputy Director (Press) till  September,  1968 when  the  post  of  Joint  Director  was  made   permanent. Admittedly,  there  is  no order  passed  by  the  competent authority  suspending  the lien of Mr. Rajendra  Nath  under Rule  3.14 of the Civil Services Rules.  Under Rule  3.11(c) of the Civil Services Rules, a Government servant cannot  be appointed   substantively  to  a  post  on   which   another Government  servant  holds a lien.  Therefore, on  the  date when  the  respondent  was  appointed  as  Deputy   Director (Press),  he  could  not have been appointed  to  that  post substantively as Mr. Rajendra Nath was having a ’lien on the said post. There is no controversy that with effect from April 1,  1964 post  of Deputy Director (Publicity Material) was made  per- manent.   It  is  no  doubt true  that  the  respondent  had completed ’three years of service as Deputy Director (Press) on June 27. 1 965 having been appointed to that post on June 27,  1962.   It is also true that he continued to  hold  the

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said  post till June 14, 1966.  The question is  whether  in view  of  these circumstances the respondent can  claim  the benefit of the Proviso to Rule 10(3) of the Gazetted Service Rules.  It may also be mentioned at this stage that  several pay  slips issued by the Accountant General  have  described the  respondent  as  Officiating  Deputy  Director  (Press). Under Rule 2.42 of the Civil Services Rules we have  already pointed  out that a Government servant officiates in a  post when  he  performs  the duties of a post  on  which  another person holds a lien.  Therefore, considering the appointment of the respondent 481 as  Deputy Director (Press)having due regard to Rules  2.42, 3.11 (c) and 3.14 prima facie, it is difficult to hold  that the respondent was appointed against a permanent vacancy  in the post of Deputy Director (Press).  In the first place, he could not have been appointed substantively as Mr.  Rajendra Nath  had  a lien on the said post.  The various  pay  slips which  are  on record also lead to the conclusion  that  the respondent’s  appointment  must  have  been  on  officiating basis,  as  defined under Rule 2.42 of  the  Civil  Services Rules. It  is also to be noted that the Public  Service  Commission raised  objections  to  the posting of  ’the  respondent  as Deputy Director (Press).  Those objections are contained  in the  letters  dated  January  16, 1963,  May  22,  1963  and February  10, 1965 of the Public Service Commission.  It  is also  on  record  that the Public  Accounts  Committee  also raised  very  serious objections to  the  respondents  being posted  as Deputy Director (Press).   Notwithstanding  these objections, the Government no doubt did continue him in that post for over four years. All  the above circumstances are against the  contention  of the  respondent  of  his having  been  appointed  against  a permanent vacancy. Then  the question is whether the Proviso to Rule  10(3)  of the Gazetted Service Rules makes him a permanent  Government servant,  on  the expiry of three years of  his  service  as Deputy  Director (Press).  The essential requisite  for  the applicability  of  Rule 10 is that a person must  have  been appointed against a permanent vacancy.  If once a person  is appointed  against  a  permanent vacancy, he has  to  be  on probation for two years, if he has been recruited by  direct appointment  and  for  one year if  he  has  been  recruited otherwise.    The   very  connotation  of   the   expression "Probationer"  defined  in Rule 2.49 of the  Civil  Services Rules  clearly indicates that the person is employed  in  or against a substantive vacancy in the cadre of a  Department. Under  sub-rule 2, of Rule 10 the appointing  authority  has got ’,he right to dispense with the services of the  officer or to revert him to his former post, as the case may be,  if the  officer’s work, during the period of probation  is  not satisfactory.    Under  sub-Rule  3  when  an  officer   has completed his period of probation, the appointing  authority has to confirm the said officer in his appointment.  But  if his work and conduct are not satisfactory, his services have to be dispensed with, or he has to be reverted to his former post,  if  he has been recruited otherwise  than  by  direct appointment.  Under this sub. rule the appointing  authority has also power to extend the period of probation.  The point to  be noted is that under sub-rule 1, an officer  appointed against a permanent vacancy, remains on proba- 482 tion for a period of two years, or one year, depending  upon the manner of recruitment.  No special order stating that he

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is  on  probation need be passed.  But when we come  to  the stage of sub-rule 3, the appointing authority, on completion of  probation has to confirm the officer in his  appointment or  extend  the  period  of probation.   If  the  period  of probation is extended, under subrule (3), it is needless  to state  that  there must be an order to that effect  by  the, appointing authority. In  the  case of the respondent no order of  the  appointing authority,  which in this case is the Government,  extending his probation or confirming his appointment has been passed, though  he  has been allowed to continue in the  said  post. The  Proviso  to  Subrule (3) of Rule  10  of  the  Gazetted Service Rules, will have to be understood in the context  in which  it  appears  in Rule 10.  Subrule (1)  refers  to  an appointment  against  a permanent  vacancy;  similarly,  the Proviso states that the total period of probation  including extension  shall  not  exceed three years  "if  there  is  a permanent   vacancy  against  which  such  member   can   be confirmed."  In our opinion, unless under sub-rule (1),  the respondent  has been appointed against a permanent  vacancy, as Deputy Director (Press), he is not entitled to claim  the benefit  of the Proviso.  The effect of the Proviso is  that an  officer cannot indefinitely occupy a post on  probation. It puts the upper limit of the period of probation as  three years.  It only means that the appointing  authority, if  it does  not  dispense with the services or revert him  to  him former post under sub-rule (3), cannot continue to keep  the officer on probation beyond a period of three years.  On the other hand, if the officer had been appointed in a permanent post  against a substantive vacancy and if he has  completed the  initial period of probation or the period of  probation upto  the maximum of three years, the inference is  that  he becomes a permanent member of the Service. In  the  case  before  us,  as  the  respondent  cannot   be considered  to  have  been  appointed  in  1962  against   a permanent  vacancy  to the post of Deputy  Director  (Press) which  was  no doubt a permanent post, and as  he  has  been working  only in an officiating capacity in that  post,  the question of extending his probation or confirming him  under Rule  10, of the Gazetted Service Rules does not arise  and, if  so,  the  question of calculating the  total  period  of probation  of  three  years,  which  is  necessary  for  the application of the Proviso does not and cannot arise. Mr.  Ramamurthy, however, placed considerable,  reliance  on the  expression  "if there is a  permanent  vacancy  against which such member can be confined" occurring in the  Proviso to  Rule 10(3) and urged that on June 27, 1965 when  he  had completed three 483 years  of  service as Deputy Director (Press), there  was  a third permanent post of Deputy Director (Publicity Material) in  which file could have been confirmed and  therefore,  by virtue  of  the Proviso to Rule 10(3),  the  respondent  has acquired the status of a permanent Government Servant. There  is a fallacy underlying the contention of  Mr.  Rama- murthy.  The Proviso speaks of the total period of probation and  we have already pointed out that there is, no  question of the respondent being on probation, when he held the  post of  Deputy Director (Press) on a purely  officiating  basis. Before  we come to the stage of the Proviso, the  respondent will  have to satisfy the requirement of sub-rules  (1)  and (3).   We have already pointed out that he does not  satisfy those  requirements.   If  Mr.  Ramamurthy’s  contention  is accepted,  we  will presently show, that the  position  will become  very anomalous.  We will assume that there was  only

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one  post of Deputy Director (Press).  In the said  post  to which the respondent was appointed, namely, Deputy  Director (Press),  the  previous  incumbent  Mr.  Rajendra  Nath  had admittedly a lion.  The post of Joint Director, to which Mr. Rajendra  Nath  had  been  promoted  was  a  temporary  post extending  from year to year and confirmed only in the  year 1968.  Therefore, from June 27, 1962 till 1968 Mr.  Rajendra Nath had a lien on the post of Deputy Director (Press).  The respondent  had admittedly been in tile said post from  June 27, 1962 till June 14, 1966. On  the basis of Mr. Ramamurthy’s contention, on the  expiry of three years from June 27, 1962, he must be considered  to be  a  permanent Deputy Director (Press),  which  means  Mr. Rajendra  Nath will have no post to which he can come  back, if  the Joint Director’s post is not extended.  This is  one anomaly.  Again, if the respondent’s services are considered to  be  satisfactory,  even at the expiry  of  one  year  of probation,   then  under  sub-rule  (3),   tile   appointing authority has no option but to confirm the respondent in the post  of Deputy Director (Press).  Even in such a  case  Mr. Rajendra  Nath will have no post to which he can come  back, if  the  post of Joint Director is abolished.  We  are  only pointing  out these anomalies to show that the  construction to be placed on the Proviso must be having due regard to the object of Rule 10.  That object, in our opinion, will not be served  by  placing  the interpretation on  the  Proviso  as contended by Mr. Ramamurthy. Mr.  Ramamurthy,  however, relied on the  decision  of  this Court  in State of Punjab v. Dharam Singh (1) in support  of his  contention that by virtue of the Proviso to Rule  10(3) of  the Gazetted Service Rules, it should be  presumed  that the  Government  has  confirmed  the  respondent  as  Deputy Director with effect from June 27, 1965. (1)  [1968] 3 S.C.R. 1. 484 In  our  opinion,  the said decision  does  not  assist  the respondent.   In  the  above  decision  this  Court  had  to consider   Rule   6  of  the  Punjab   Educational   Service (Provincialised Cadre) Class III Rules. 1961.  The rule  has been  quoted  therein.   A part from the fact  that  rule  6 construed  therein is differently worded, the High Court  in that  case  had  found ’that the  officers  concerned  were, officiating  in permanent posts against permanent  vacancies as contemplated by sub-rules (1) and (2) of Rule 6  therein. It  was  further found by the High Court that  the  officers therein had completed their three years period of  probation and therefore they must be deemed to have been confirmed  in their appointment.  The State contested the decision of  the High  Court  on the ground that the  officers  cannot  claim permanency, as no orders of confirmation had been passed  by the appointing authority. This Court after a consideration of the rules as well as the finding recorded by the High Court rejected this  contention of the State and dismissed the appeal.  The position of  the respondent  before us is entirely different.  There  was  no substantive  vacancy  of  Deputy  Director(Press)  when  the respondent  was appointed in 1962.  We havealso referred  to the  relevant provisions in the Civil Services Rulesand  the Gazetted  Service Rules.  In fact the Government  could  not have  appointed the respondent against a permanent  vacancy, in view of the fact that Mr. Rajendra Nath was having a lien on  the  post and so long as he had that lien there  was  no substantive  vacancy  in the post of Deputy  Director.   The circumstance that with effect from April 1, 1964 the post of Deputy Director (Publicity Material) was made permanent will

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not help the respondent as lie has not been at all appointed in the first instance against a permanent vacancy. In the view that we take about the Proviso to Rule 10(3)  of the Gazetted Service Rules, we do not think it necessary  to refer  to the decisions in The Commissioner  of  Income-tax, Mysore  v.  The Indo Mercantile Bank  Limited(1),  Tahsildar Singh and another v. The State of Uttar Pradesh(2), State of Madhya  Pradesh  and another v. Lal  Bhargavendra  Singh(3), cited by Mr. Tarkude regarding the principles to be borne in mind  in  construing a Proviso in a statute.   Mr.  Tarkunde drew our attention to a decision of the Punjab High Court in Dr. Deep Kaur v. The State of Punjab(4).  The High Court  in the said decision had to consider Rule 7 of the Punjab Civil Medical  Service,  Class 11 (Recruitment and  Conditions  of Service)  Rules, 1943.  One of the contentions taken  before the  High  Court was that the officer  concerned  should  be considered to have been automatically confirmed after the (1)  [1959] SuppI. (2) S.C.R. 256. (3)  [1956] 2 S.C.R. 56. (2)  [1959] Suppl. (2) S.C.R. 875. (4)  [1967] (Vol. I) S.L.R. 34. 485 expiry of the period of three years.  On a consideration  of the relevant rules, the learned Judges have beld that it  is only  a person who is appointed against a permanent  vacancy would  get  automatically  confirmed  after  completion   of probation  of  three years.  It is not necessary for  us  to consider this decision any further as the rules construed by the  learned  judges were different.  It only  necessary  to note  that the learned Judges have referred to the  decision of  the High Court, which is now under appeal before  us  as supporting  the  contention of the officer and  the  learned Judges have noted that the appeal is pending in this Court. Mr.  Ramamurthy,  on  the other hand,  referred  us  to  the decision  of the Punjab and Haryana High Court  reported  in Devi   Shanker  Prabhakar  v.  The  State  of  Haryana   and another(1) and urged that the construction that lie wants us to  place on the Proviso to Rule 10(3) has been  adopted  by the  High  Court.  We have gone through the  said  decision. From the facts it is seen that the officer was appointed  in a  substantive vacancy in a permanent post on probation  for one year on October 6, 1960.  The period of probation of one year ended on October 6, 1961.  He was continued in the said post till lie was reverted in 1969.  The officer  challenged the  order  of  reversion on the ground that  after  he  had completed  the  period  of probation and  has  continued  in service for more than three years in a permanent vacancy and in a permanent post, he should be considered as a  permanent employee  of the Government under the Proviso to Rule  10(3) of the Gazetted Service Rules.  The State contended that  as no order of confirmation was passed, the Government  servant was  not entitled to claim permanency in the post.  In  that connection  the High Court has referred, with  approval,  to the decision of the High Court, under appeal before us.  The facts of the decision of the High Court, referred. to above, are  entirely different from the facts in the appeal  before us.  If  the  respondent officer had been  appointed,  in  a substantive    vacancy  in a permanent post, and if  he  had been continued forover three years, quite naturally, he wilt be   entitled  to claim the benefit of the Proviso  to  Rule 10(3). Therefore,  the view of the High Court that as there  was  a permanent  post of Deputy Director (Publicity  Material)  at the  material  time, the respondent had become  a  permanent Deputy  Director  under ’the Proviso to Rule  10(3)  of  the

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Gazetted  Service  Rule,,. with effect from  June  27,  1965 cannot be sustained. The third point that arises for consideration is whether the respondent’s appointment as State Press Liaison Officer,  is coterminus  with the continuance of the said post.  We  have already  referred  in extenso to the case  of  the  parities regarding  this  post.  By order dated  June  28,  1957  the Governor of Punjab created the (1)  [1971] (Vol. 73) Punjab Law Reporter 644. 486 post  of  State Press Liaison Officer at Delhi  with  effect from  June  22, 1957 till February 28, 1958  in  the  Public Relations Department, Punjab.  The said order also  appoints the  respondent  to  the said post.  On  August  1,  1957  a notification  was issued by the State  Government  regarding the  appointment,  posting  and transfer  of  officers.   By virtue  of that order, the Governor of Punjab appointed  the respondent  as State Press Liaison Officer at Delhi  in  the Public  Relations  Department.  The said order  also  states that the respondent has already assumed charge of his duties with  effect  from June 22, 1957.  Originally, in  the  writ petition  the respondent had claimed to his having become  a permanent Government servant more or less exclusively on the basis  of his having been in service for over 11 years.   In connection with the post of State Press Liaison Officer,  he later  on,  filed a copy of the gazette  notification  dated July 11, 1962 in and by which a new Service is said to  have been  created and in which the post of State  Press  Liaison Officer  was  included as a cadre post.  He had  also  filed along with his affidavit dated February 19, 1969, a copy  of the  Said notification.  On behalf of the State,  the  third appellant had filed an affidavit to the effect that the post of State Press Liaison Officer was a temporary one.  But  it was  admitted by the third appellant that the said post  was held in abeyance from June 27, 1962 to June 14, 1966, during which  period  the  respondent  was  functioning  as  Deputy Director  (Press).  It has also been admitted by  the  third appellant  that the post of State Press Liaison Officer  was again  revived  and the respondent was posted to  that  post with effect from June 15, 1966. In  view of the different stand taken, regarding the  nature of  the post of State Press Liaison Officer, the High  Court passed  an  order on July 21, 1969  requiring  the  parties, including  the  then  Chief  Secretary  to  file  affidavits regarding  the  nature of the post of  State  Press  Liaison Officer.   Various affidavits were filed by the  respondent. The officers of the State filed affidavits pleadings showing that the notification dated July 11, 1962 did not create any new Service, nor did the said notification make the post  of State Press Liaison Officer a cadre post.  We may also refer to the notification dated July 11, 1962, which is as follows Chandigarh, the July, 11, 1962. No.  6244-IPP-62.   The  Governor Of Punjab  is  pleased  to accord  sanction  to  the creation  of  the  Punjab  ’Public Relations  Service’  and to include therein  tile  following Posts  after  classifying  them  into  Class  I  and  II  as mentioned below ------------------------------------------------------------ S.No.           Name of the Post           Class of Service ------------------------------------------------------------ 4.  State Press Liaison Officer.               II ------------------------------------------------------------ 487 On  June 24, 1966 the Government transferred the  respondent from  on the post of Deputy Director (Press) as State  Press

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Liaison  Officer with effect from June 14, 1966  "consequent upon the revival of the State Press Liaison Officer, Delhi". The  stand  taken  by the Chief Secretary  and  the  various officers.  who  filed affidavits in pursuance of  the  order dated July 21, 1969 was that the notification dated July 11, 1962 did not create a new service and did not make the  post of State Press Liaison Officer a cadre post.  But it is seen that  during the course of arguments before the  High  Court the State abandoned its initial stand that the post of State Press  Liaison  Officer has not become a cadre post  as  per notification  dated July 11, 1962.  On the other hand it  is recorded in the judgment that the State conceded that on and from July II, 1 962 the post of State Press Liaison  Officer had become a cadre post.  But they contested the plea of the respondent  that a new Service had been created.   The  High Court  has  come to the conclusion that no new  Service  has been  created by the said notification.  On the  other  hand what  was  done by the notification was only to give  a  new name  as  Punjab Public Relations Service and  the  gazetted posts  were classified in Classes I and II.  The High  Court has  again  remarked that the State having failed  to  prove that the post of State Press Liaison Officer was not a cadre post, it began to take a different stand that in any  event. it was not a permanent post. It  is on the basis of the concession made on behalf of  the State  their  the post of State Press  Liaison  Officer  has become a cadre post. the High Court has considered the claim regarding  the nature of the right that the  respondent  had when he was holding that post. Before us Mr. Tarkunde, learned counsel for the  appellants, attempted to argue that the statement in the judgment of the High  Court  that there has been either a concession  or  an abandonment  of the original plea by the State, as  recorded therein  is erroneous, as no such concession has  been  made nor  was  the  original  stand  taken  by  the  State   ever abandoned.  We are not inclined to accept this contention of Mr. Tarkunde.  If the statements in the judgment of the High Court  were  not  correct,  one  would  have  expected   the appellants when they filed their application S.C.A. No. 1 of 1970 before the High Court for grant of certificate to  have challenged the statements contained in the judgment.  On the other  hand there is only a feeble statement in  the  ground No. 3 filed before the High Court that in view of the  stand taken  by  the  Government  there was  no  question  of  any concession  nor was any statement made that the post was  in the cadre of Service.  This 488 is  not  the manner in which a statement  contained  in  the judgment Is to be challenged.  We have to proceed through on the  basis  that the appellants have accepted  the  position that  the  post Of State Press Liaison Officer  is  a  cadre post.   One of the circumstances relied on by Mr.  Tarkunde, that  there could not have been any such concession made  by the  State, as stated in the judgment of the High Court,  is that the post of State Press Liaison Officer is not shown in Appendix A of the Gazetted Service Rules.  But it should  be remembered that those rules were framed in 1958 : it is also true that the said post is not contained in Appendix A.  But it  will be seen that under Rule 3 of the  Gazetted  Service Rules,  the  right of the Government to  make  additions  or reduction in the number of posts shown in Appendix A whether permanently  or  temporarily has been  preserved.   In  this connection  it  is also to be  noted that in  the  affidavit dated  August  7, 1969, filed by Mr. E. N. Mangat  Rai,  the then Chief Secretary, he has clearly admitted that though no

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new Service was created by notification dated July 11, 1962, nevertheless, the said notification added certain additional posts  to the Service.  He has further admitted that one  of the  said additional posts was that of State  Press  Liaison Officer. In view of the above, facts, which are on record, it is only reasonable to infer that in exercise of the power under Rule 3,  the State Government, has made an addition to the  cadre of the posts in Appendix A by including therein, the post of State  Press Liaison Officer.  Therefore, there  is  nothing strange  in the State having accepted the above position  as correct  and in the High Court holding that  the  respondent has  succeeded in establishing that the post of State  Press Liaison Officer was included in the cadre post in July 1962. But  any how it is unnecessary for us to pursue this  matter further,  because  we have to proceed on the  basis  of  the concession  made  before  the High Court by  the  State  and recorded  in  the judgment.  From the nature of  the  orders passed by the State in respect of this post, it looks as  if the State was specially favoring the respondent by  creating a post for him and appointing him to that post.   Originally the post was created on June 28, 1957 and the respondent was appointed thereto.  When he was Deputy Director (Press)  for all those four years, and it is admitted that the said  post was  kept  in  abeyance.   This is  admitted  by  the  third appellant  in his affidavit.  Even otherwise, the  order  of the Government dated June 21, 1962 creating a post of  Joint Director itself ordered that the post of State Press Liaison Officer  is  to be held in abeyance.  It is  significant  to note  that  Mr. Rajendra Nath was appointed  to  this  newly created  post  of  Joint Director and  tile  respondent  was appointed as Deputy Director (Press).  It was 489 during  this period when the respondent was Deputy  Director (Press)  that  the post of State Press Liaison  Officer  was kept in abeyance.  There is no indication in the order dated June  28, 1957 or in the order dated June 24, 1966  limiting the  tenure of the respondent’s appointment as State,  Press Liaison Officer. These  are the only two orders that have been  produced,  so far as we could see regarding the respondents appointment to the  said post.  It is claimed on behalf of  the  appellants that  the said post was being renewed from year to year  and therefore  it is a purely temporary post.  Though no  orders have  been produced before the Court, we will  accept  their this  plea that it is a temporary post continuing from  year to year. But  the  point  to  be noted  is  that  no  further  orders appointing  the  respondent  to  the  said  post  have  been produced,  though  it is admitted that he was.  holding  the said  post.   If  such  orders  had  been  produced  by  the appellants, it may be possible to find out the exact  nature of the tenure for which the respondent was appointed-whether his  appointment is for the duration of the post or  whether it  has  been limited only till further orders  or  for  any particular  period.  But the lack of such  particulars,  has resulted in the Court not being able to investigate the term for which the respondent was appointed to the said post. The  High Court has proceeded on the basis that inasmuch  as ’the  post was a temporary one and was being continued  from year to year, the respondent has a right to hold the post at least  till February 28, 1969 till which  period  admittedly the post had been renewed and, therefore, the termination of his service on October 31, 1968 was illegal. Mr.  Tarkunde has urged that the appointment of the  respon-

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dent  was also on a temporary basis and his appointment  was not  co-terminus with the continuance of the, post.   As  we have already pointed out, no orders have been placed  before the Court regarding that aspect on behalf of the State.  But there  is  a pay slip on record dated April 22,  1968.   The Assistant  Accounts  Officer has issued the payslip  to  the Treasury  Officer, Delhi stating that the payslip issued  in favour  of the respondent, who was the State  Press  Liaison Officer,  Haryana,  New  Delhi, on August 31,  1967  may  be deemed as operative upto and inclusive of February 28, 1969. It  was  no doubt sought to be explained on  behalf  of  the appellants  that  this  payslip has only been  issued  in  a routine  and formal manner to enable the respondent to  draw his  salary.  We are not inclined to accept this  contention of the learned counsel.  That payslip, in the absence of any other  materials placed before the Court by the  appellants, gives  an  indication that the respondent’s  appointment  as State Press Liaison Officer is co-terminus with the 490 continuance  of  the post.  It is not disputed that  at  the time  when the said payslip was issued, the duration of  the post had been extended upto February 28, 1969. In view of all the above circumstances, it is reasonable  to infer that the appointment of the respondent as State  Press Liaison  Officer is co-terminus with the continuance of  the post.  No doubt, we are aware of the finding recorded by the High  Court  that such a claim by the respondent  cannot  be accepted.   But it was the duty of the appellants, who  were urging  that  the  respondent’s  appointment  was  a  purely temporary  one and that it was not for the duration  of  the post,  to  have  placed  all  the  orders  relating  to  the appointment  of the respondent to the said post.   Going  by the  terms  of the orders dated June 28, 1957 and  June  24, 1966,  there is no such indication.  On the other  hand  the indications are to the contrary that his appointment was co- terminus with the continuance of the post subject of  course to   the  rules  regarding,  the  age  of   retirement   and superannuation   and  the  right  of  the  State   to   take disciplinary action, according to law. At  this  stage  we may mention that there is  on  record  a notification issued by the State of Haryana dated April  11, 1969  regarding the sanction accorded to the creation  of  a temporary  post  of Liaison Officer, Haryana at  Delhi  from April  1,  1969  to February 28.  1970.   That  notification refers  also to the special pay of the officer who is to  be appointed  to the said post as well as his grade.  But  that order does not relate to any appointment of. any officer  to the said post.  Therefore, that notification by itself  does not  throw any light as to the duration of the office to  be held by a person to be appointed to that post. Mr. Tarkunde, learned counsel for the appellants, then urged that  it  was within the power of the  State  Government  to terminate  the services of the respondent under Rule  5.9(b) of  the Civil Services Rules.  The High Court has held  that the  said rule does not apply.  But it is not necessary  for us  to  express  any  opinion as  to  the  applicability  or otherwise  of the said rule.  A,, we have already held  that the  appointment of the respondent must be considered to  be co-terminus  with  continuance of the post  of  State  Press Liaison Officer,- it follows that the State had no power  to terminate  the  services  of the respondent  when  the  post itself was continuing.  If any action by way of disciplinary proceedings  was  being taken, then the  State  should  have complied  with Art. 311 (2) of the Constitution, which  they have admittedly not done in this case.

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We  make  it clear that by upholding the contention  of  the respondent  that  his appointment ,is  State  Press  Liaison Officer was for the duration of the continuance of the  said post, we do not 491 intend to lay down any general proposition that whenever  an officer is appointed to a post, he will be entitled to  hold that  post so long as the post exists.  It will  all  depend upon  particular circumstances of each case as well  as  the nature  of the orders making the said appointment.  In  the, case before us, we have held in favour of the respondent, in view of the various circumstances mentioned earlier. To conclude, we accept the contentions of the State that the impugned  order is not vitiated by mala fides and  that  the respondent did not become a permanent Government servant  on his appointment as Deputy Director (Press).  But we  further hold  that  in  view  of the  circumstances  of  this  case, indicated  earlier,  the respondent’s appointment  as  State Press  Liaison Officer was co-terminus with the  continuance of  the  post and as such the order dated October  31,  1968 terminating  the services of the respondent, when  the  post was  admittedly in continuance, the order of termination  is illegal. In the result, the judgment and order of the High Court  are modified  to  the  extent indicated  above  and  the  appeal allowed   in  part.   In  other  respects,  the  appeal   is dismissed.  There will be no order as to costs. G.C.                                Appeal allowed in part. 18 -L500Sup.  CI/72 492