HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED Court No. - 2 Case :- WRIT - A No. - 8068 of 2011 Petitioner :- Sunil Kumar Gupta Respondent :- State Of U.P. And Others Counsel for Petitioner :- Vatsal Srivastava,Ashok Khare,V. Srivastava Counsel for Respondent :- C. S. C.,H.N. Singh,Somveer Singh Hon'ble Suneet Kumar,J.
The triable question raised by the contesting parties is as to whether the Regional Employment Officer, Agra Region, Agra was competent to remove/dismiss the petitioner, holding the post of Senior Assistant in the office of the District Employment Office, Mathura, being an authority subordinate to that by which the petitioner was appointed.
The service condition of the petitioner is governed under U.P. Training and Employment Ministerial Service Rules 19811.
The facts of the case, briefly is, that the petitioner was appointed Lower Division Clerk2 in the office of Government Industrial Training Institute (G.I.T.I.), Mathura, subsequently, was promoted to the post of Senior Assistant on 06 December 2006 by the second respondent, Director, Training and Employment, Lucknow3. The petitioner while working at Mathura, was placed under suspension on 06 August 2009, charge sheeted on 04 November 2009 containing eight charges issued by the Enquiry Officer, Regional Employment Officer, Jhansi, which was countersigned by the third respondent, Regional Employment Officer, Agra Division, Agra in the capacity of appointing authority/disciplinary authority. Upon conclusion of the enquiry, the third respondent, Regional Employment Officer, Agra Division, Regional Employment Office, Agra by the impugned order dated 24 July 2010 imposed major penalty of dismissal upon the petitioner.
Aggrieved, petitioner preferred an appeal before the second respondent, Director, which was rejected on 13 December 2010. The petitioner is assailing the aforementioned orders solely on the ground that the third respondent, Regional Employment Officer, Agra is not the appointing authority, the second respondent, Director being the appointing authority, could have removed the petitioner, therefore, the order of dismissal is void ab initio.
The contention of Sri Ashok Khare, learned Senior counsel appearing for the petitioner is that the entire enquiry stands vitiated as the disciplinary proceedings were initiated by an officer subordinate to that of the appointing authority/disciplinary authority. The petitioner admittedly was promoted on the post of Senior Assistant by the Director. Pursuant thereof, petitioner was posted at District Employment Office. The suspension order, the charge sheet and the impugned dismissal order which was passed by the third respondent, Regional Employment Officer, who being subordinate in rank and status to that of the Director could not have removed the petitioner.
In rebuttal, Sri H.N. Singh, learned senior counsel appearing for fifth respondent, Regional Employment Officer, Agra Division, Agra and the learned Standing Counsel appearing for the State respondents would submit that the petitioner was promoted on the post of Upper Division Clerk4 which was subsequently redesignated Senior Assistant under the Rules 1981. The appointing authority of Upper Division Clerk under the Rules 1981 is the Regional Employment Officer, the petitioner being an officer under Field Staff and not an officer of the Directorate, the Regional Employment Officer was the competent authority, therefore, would urge there is no illegality or infirmity in the impugned order. The order is intra vires of Article 311.
Rival submissions fall for consideration.
It is admitted between the parties that the petitioner is an officer of the Field Staff and not of the Directorate. As to who is the appointing authority of the petitioner, the Rules 1981 governing the petitioner needs to be examined. Sub-clause (a) of Rule 3 defines 'appointing authority' which means an authority mentioned in Appendix 'A' to the Rules. The 'Directorate' means the head quarters office of the Director. Sub-clause (f) of Rule 3 defines 'Field Staff' which means the ministerial staff, other than the headquarter staff, working in the field offices; sub-clause (g) defines 'Field Office'; which means an office other than the Directorate but functioning under the administrative control of the Director. Sub-clause (j) defines 'Headquarters Staff' which means the ministerial staff of the Directorate.
Part III of the Rules 1981 provide for 'Recruitment', Rule 5 specifies the source of recruitment. The staff under Rule 5 are divided in two heads: (i) Headquarter Staff and (ii) Field Staff. Sub-clause (xi) under 'headquarter staff' refers to Senior Assistant and other equivalent posts/position and provides their source of recruitment. Sub-clause (xi) reads as follows:-
"Senior Assistant/Noter and Drafter/Assistant Accountant/Upper Division clerk/Inspector of Accounts Stock Verifier-By promotion from amongst permanent Compilation Assistants, Junior Noter and Drafters, Record Keepers and Accounts Clerk:"
Under the 'Field Staff', Sub-clause (viii) provides the source of recruitment for Head clerk/ UDC, which is extracted:-
(viii) Accountant/Accountant-cum-Cashier/ Head Clerk/Upper Division Clerk/Store Keeper (Regional Employment Exchange of Kanpur).- By promotion from amongst permanent Lower Division Clerks/ Guides/Typists/ Career Room Guides."
The petitioner admittedly being a field staff and not a headquarter staff, was promoted from the post of LDC to the post of Senior Assistant as is reflected from the promotion order passed by the Director. The Rules 1981 referred hereinabove, would reveal that under the head of Field Staff, there is no post of Senior Assistant. LDC gets promoted to the post of UDC/Head Clerk. In Appendix 'A' to the Rules 1981, the appointing authority for the post of Senior Assistant/UDC under 'Headquarter Staff' is the Director, whereas, Head Clerk/UDC under the Field Staff, the appointing authority is the Regional Employment Officer/Principal. There is no post of Senior Assistant under the Field Staff. The pay scales of both the post, Senior Assistant under the Headquarter staff and Head Clerk/UDC under the Field Staff are different. The pay scale of Senior Assistant is higher as compared to that of the UDC working under the Field Staff, probably, therefore, the appointing authority are different officers.
Learned counsel for the parties would not dispute that subsequently the pay scale of the Senior Assistant and UDC were brought at par, at the time of promotion the pay scales were equal but the appointing authority continued to be distinct.
In view of the position as emerges upon examining the Rule 1981, Sri H.N. Singh, Senior Counsel would submit that the petitioner being a LDC under the Field Staff, was promoted to the post of UDC which subsequently was designated Senior Assistant, therefore, the appointing authority of the Senior Assistant/UDC at the Head Quarter is the Director/Joint Director, whereas, the appointing authority of UDC for Field Staff being the Regional Employment Officer, hence, would urge there is no illegality or infirmity in the impugned order.
The principle enshrined in Sub-clause (1) of Article 311 is that no person who is a member of the civil service or holds a civil post under the Union or State shall be dismissed or removed by any authority subordinate to that by which he was appointed. The parties do not dispute that the petitioner is holding a civil post.
The clause applies only if the following conditions are satisfied.
"(a) That the person whose services are terminated is a member of a civil service or holds a civil post.
(b) That such termination amounts to 'dismissal' or 'removal5. Thus, Clause (1) need not be complied with where a person is discharged in terms of conditions of his contract of service6. Similarly, where the penalty awarded is other than dismissal or removal, e.g., reduction in rank, or suspension, it may be awarded by an authority who is empowered in that behalf by the Rules even though he is not the 'appointing authority'."
A dismissal by an officer subordinate to the appointing authority is null and void. The defect goes to the root of the order of dismissal and is not cured even if that order is confirmed on appeal by the 'appointing authority' or some other superior authority7.
On the other hand, this clause does not require that the dismissal or removal must be ordered by the very same authority who made the appointment or by his direct superior. There is a compliance with the clause if the dismissing authority is not lower in rank or grade than the appointing authority8. It follows that dismissal by an authority superior to the appointing authority is not bad.
The dismissal is not invalid where the order of dismissal is passed by the appointing authority but the order is merely communicated by some subordinate officer.
It is for the Government servant to plead and prove who was his 'appointing authority' and also that the dismissing authority is lower in rank than the appointing authority9. 'Subordinate' refers to subordinate in rank10 and not in respect of function11.
Therefore, where the order of dismissal is made by an authority subordinate to the appointing authority, the unconstitutionality is not cured by the fact that the order of dismissal is confirmed, on appeal by the proper authority. On the same principle, the appointing authority cannot delegate his power of dismissal of removal to a subordinate, so as to destroy the protection afforded by the Constitution, unless the Constitution itself authorises such delegation by other provisions12. It is not possible for the proper authority to validate an order made without jurisdiction, with retrospective effect.13 If the dismissing authority is not subordinate in rank to the appointing authority, any difference in designation is not material14. Thus in order to ascertain who was the 'appointing authority' for the purposes of application of Art. 311(1), the formal document on the basis of which the civil servant holds his appointment must be looked into.
Hence, when a person is, in fact, appointed by an authority superior to the authority who is entitled, under the Departmental Rules, to appoint that person, he can be dismissed only by that authority who had, in fact, ordered that appointment and not the authority empowered by the Rules. Where a person is confirmed in a higher post in which he was officiating it is the officer who issues the order of confirmation who becomes his 'appointing, authority' and not the higher officer who may have selected him for such confirmation.15 Where the power to appoint is vested by a statutory provision in one authority, to be exercised on the advice of another, it is the former who is to be regarded as the 'appointing authority'.16 Recommending/approving authority does not thereby become the appointing authority.17 Where the conditions of service were kept intact by the States Reorganisation Act, 1956, an employee, who was appointed prior to such reorganisation, cannot be dismissed, after reorganisation, by any authority lower than the authority who had appointed him, or an authority equivalent to or co-ordinate in rank with the appointing authority. Thus, where the employee was appointed by the then Head of the Department, he cannot be dismissed by anybody subordinate to the corresponding Head of the Department, after reorganisation;18 nor can a person appointed by the Rajpramukh be dismissed by a Financial Commissioner (who is subordinate to the Governor), except with the previous approval of the Central Government.19 The departmental proceeding can be initiated by a person lower in rank than the appointing authority but the final order can be passed only by the appointing authority or an authority higher than it.20 The onus of producing all relevant papers to show that the dismissing authority was lower in rank than the appointing authority is upon the petitioner.21 Dismissal order passed by a subordinate is void ab initio.22 Hence, the fact that such order was subsequently confirmed in appeal by the Head of the Department will not cure the initial defect.23 Having considered the legal position and binding precedent, applying it to the facts of the case. The record would reveal that in reply sought under the Right to Information Act dated 06 January 2011, respondent informed that the petitioner was promoted as Senior Assistant, the designation of the post came on the recommendation of the Fourth Pay Commission in 1986, petitioner was promoted by the Director. The information so furnished is also reflected from the other material brought on record. Promotion is a mode of appointment. The order of promotion was issued by the Director, therefore, the appointing authority of the petitioner for the purpose of Article 311 would be the Director, who vide letter dated 6 October 2011 sought an explanation from the Regional Employment Officer that under what circumstances he had passed the order of dismissal when admittedly the promotion was issued by the Director. But the second respondent, Director, while deciding the appeal of the petitioner accepted the view taken by the Regional Employment Officer that under Rules 1981 it is the Regional Employment Officer who is the appointing authority of the UDC and placing reliance on the Government Order dated 19 February 1988 rejected the plea of the petitioner. The Government Order dated 19 February 1988 (at Annexure 46) of the record was dealing with a situation, where a superior authority made the appointment/promotion, subsequently the confirmation order was passed by the appointing authority who is lower in rank, the question that arose for clarification was as to who is the competent authority to exercise power under Article 311(1). The Government Order clarified that it would be the officer who appointed the Government servant though he may not be the designated appointing authority under the Rules.
The clarification so furnished is in sync with the position of law as noted herein above. Hence, the stand taken by the respondents that the Regional Employment Officer is the person who appointed the petitioner on promotion is not borne out from the material brought on record, rather the record would reflect that appointment and promotion could have been made at the Directorate level alone, as the circular noted hereinabove, would provide. The respondents in practice have followed the circular for a prolonged period without amending the statutory Rules 1981. Even taking a case, otherwise, the order of promotion was admittedly passed and issued by the Director who being an higher officer than the appointing authority Regional Employment Officer, the impugned order of removal could not have been passed by the Regional Employment Officer nor it could have been cured in appeal by the Director.
Therefore, the appellate authority while passing the impugned order dated 24 July 2010 misread the Government Order dated 19 February 1988, further the Directorate by Circular dated 31 August 1989 addressed to all the Regional Employment Officer/District Officer clarified that upon enforcement of the new staff proposed promotion, absorption and appointment of all senior clerks would, henceforth be made at the Directorate level. The circular in irrevocable terms would provide that promotion from the LDC to Senior Assistant shall not be made at the Regional level, in the eventuality of any such promotion being made it shall be treated to be void, consequently the employee shall not receive any benefit pursuant to such promotion. It is relevant to note that the initiation for promotion to the post of Senior Assistant was undertaken by the Directorate vide letter dated 02 November 2006, the name of the petitioner finds place at Serial No. 8. Petitioner in appeal before the second respondent, Director, raised the issue that the Regional Employment Officer was not competent to have initiated disciplinary proceedings or removed him from service. The relevant documents were placed before the Director who inspite of being aware that the Regional Employment Officer was not competent to initiate or promote an officer to the post of Senior Assistant/UDC deliberately had taken recourse to the unamended Rules 1981 to justify the illegal order passed by the Regional Employment Officer.
The counter affidavits filed by the respondents are prima facie false affidavits, the averments made therein do not correspond to the circulars/letters issued by the Director.
For the reasons and law stated herein above, the writ petition succeeds and is accordingly allowed. The impugned orders dated 24 July 2010 passed by the third respondent, Regional Employment Officer, Agra Division, Agra and order dated 13 December 2010 passed by the second respondent, Director, Training and Employment, Lucknow, respectively are quashed. The petitioner shall be entitled to all consequential benefits including lost wages from the due date.
I would like to record my appreciation for Sri Aishwarya Krishna, Law Clerk for research work undertaken by him in the assistance of this case.
The cost of litigation assessed at Rs. 50,000/-, to be paid to the petitioner by the second respondent, Director, Training and Employment, Lucknow within six weeks.
Order Date :- 01.09.2015 kkm