Sayed Mohammad Rashid vs State Of U.P. And Others
2013 Latest Caselaw 4858 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 13189 of 2007
 

 
Petitioner :- Sayed Mohammad Rashid
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Yogendra Kr. Srivastava,Y.K. Saxena
 
Counsel for Respondent :- C.S.C.,V.B. Jauhari
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Y.K. Srivastava, learned counsel for petitioner; and, Sri B.B. Jauhari, Advocate, for respondents.

2. Short question, up for consideration is, whether petitioner, appointed vide order dated 18.7.1985, by Chairman, State Legal Services Authority could have been terminated by President, District Legal Services Authority, Mainpuri.

3. The Legal Services Authorities, whether at the State level or District level or otherwise, are governed by the Legal Services Authorities Act, 1987 (hereinafter referred to as "Act, 1987"). All the provisions thereof, except Chapter III, which deals with the State Legal Services Authority, were enforced with effect from 9.11.1995 vide Gazette of India dated 9.11.1995. The provisions relating to State Legal Services Authorities, were enforced in the State of U.P., with effect from 5.7.1996. The different level of Legal Services Authorities contemplated under Act, 1987, are:

(1) National Legal Services Authority (vide section 3)

(2) State Legal Services Authority (vide Section 6)

(3) District Legal Services Authority (vide Section 9)

(4) Taluk Legal Services Committee (vide Section 11-A, which came to be inserted vide Act No. 59 of 1994 with effect from 29.10.1994)

4. In the present case, this Court is concerned with the "State Legal Services Authority" (hereinafter referred to as "SLSA") and "District Legal Services Authority" (hereinafter referred to as "DLSA"). The constitution of SLSA is provided in Section 6 (2) which says:

(a) Chief Justice of High Court shall be the Patron-in-Chief;

(b) a serving or retired Judge of the High Court, to be nominated by Governor, in consultation with the Chief Justice of the High Court, who shall be the Executive Chairman; and

(c) such number of other members, possessing such experience and qualifications as may be prescribed by the State Government, to be nominated by the Government in consultation with the Chief Justice of the High Court.

5. The provisions of Section 6 (2) of Act, 1987 have been read down by Apex Court in Supreme Court Bar Association Vs. Union of India (2007) 4 SCC 353 by directing that a retired Judge shall be appointed in exceptional circumstances; and, as a normal rule, a sitting Judge should be appointed as Chairman and only when unusual difficulties exists, a retired Judge may be appointed.

6. Sub-section (5) and (6) deal with the Officers and other employees, need be employed by the SLSA, and the same read as under:

6. Constitution of State Legal Services Authority.- .....

"(5) The State Authority may appoint such number of officers and other employees as may be prescribed by the State Government, in consultation with the Chief Justice of the High Court, for the efficient discharge of its functions under this Act.

(6) The officers and other employees of the State Authority shall be entitled to such salary and allowances and shall be subject to such other conditions of service as may be prescribed by the State Government in consultation with the Chief Justice of High Court."

7. Section 28 of Act, 1987 confers power upon State Government to make rules in consultation with the Chief Justice of High Court, by notification, to carry out provisions of the Act, and also on the matter enumerated in sub-section (2) thereof. In purported exercised of power thereunder, U.P. State Legal Services Authority Rules, 1996 (hereinafter referred to as "Rules, 1996") were enacted vide Notification dated 12.3.1996. Rule 7 thereof deals with the number of Officers and other employees of SLSA and reads as under:

"7. Number of officers and other employees of the State Authority.-

(1) The number of officers and other employees including Secretary II, Officer-on-Special Duty and Deputy Secretary of the State Authority shall be such as may be determined by the Government, from time to time, in consultation with the Chief Justice.

(2) The number of officers and other employees including Secretary II, Officer-on-Special Duty and Deputy Secretary of the State Authority shall, until orders varying the same are passed under sub-rule (1), be as given in Appendix-A.

(3) All the officers and other employees including Secretary II, Officer-on-Special Duty and Deputy Secretary working immediately before the commencement of these rules, in the Uttar Pradesh Legal Aid and Advice Board shall, on such commencement, be the officers and other employees of the State Authority."

8. With regard to conditions of service, pay and allowances of Officers and other employees of SLSA, Rule 8 of Rules, 1996 provides as under:

"8. Conditions of service, pay and allowances of the officers and other employees of the State Authority.- (1) The officers and other employees of the State Authority other than Secretary II, Officer-on-Special Duty and Deputy Secretary shall be entitled to such pay and allowance as may be determined by the Government, from time to time, in consultation with the Chief Justice.

(2) The scales of pay at the time of the commencement of these rules are as given in the Appendix-A.

(3) The officers and other employees of the State Authority shall be entitled to such other facilities, allowances and benefits as may be determined by the Government, from time to time, in consultation with the Chief Justice.

(4) Secretary-II and Officer on Special Duty shall be appointed, in consultation with the Chief Justice, from amongst persons belonging to the Uttar Pradesh Higher Judicial Service for a term not exceeding five years.

(5) Deputy Secretary shall be appointed, in consultation with the Chief Justice, from amongst persons belonging to the Uttar Pradesh Nyayik Sewa not below the Rank of Civil Judge (Senior Division).

(6) In all matters, like age of retirement pay and allowance, benefits and entitlements disciplinary matters and other conditions of service Secretary II, Officer-on Special Duty and Deputy Secretary shall be governed by the rules applicable to the service to which they belong. The Secretary II, Officer-on-Special Duty and Deputy Secretary shall be on deputation to the State Authority.

(7) Until the terms and conditions of service of officers and other employees of the State Authority other than the Secretary II, Officer-on-Special Duty and Deputy Secretary are prescribed, their qualifications, procedure for recruitment and other conditions of service including disciplinary matters, leave, provident fund and other matters shall be the same as that of the officers and employees of similar category in the Government and rules relating thereto shall mutatis mutandis apply." (emphasis added)

9. Sub-rule (7) clearly states that in respect to matters not specifically governed by Rules, 1996, similar provisions applicable to the similar category of the Government employees shall mutatis mutandis apply to the Officers and employee of SLSA. Similarly, in respect to the employees, engaged in DLSA, Rules 12 and 13 are relevant and for ready reference, the same are also reproduced as under:

"12. Number of Officers and other employees of District Authority.- (1) The number of officers and other employees of a District Authority shall be such as may be determined by the Government, from time to time, in consultation with the Chief Justice.

(2) The number of officers and other employees of a District Authority shall, until orders varying the same are passed under sub-rule (1) be as given in Appendix-C.

(3) All the officers and other employees working, immediately before the commencement of these rules, in a District Legal Aid and Advice Committee, shall on such commencement, be the officers and employees of the District Authority.

13. Conditions of service, pay and allowance of the officers and other employees of District Authority.- (1) The officers and other employees of the District Authority shall be entitled to such pay and allowance as may be determined by the Government, from time to time in consultation with the Chief Justice.

(2) The scales of pay at the time of commencement of these rules are as given in Appendix.-C.

(3) the officers and other employees of the District Authority shall be entitled to such other facilities, allowances and benefits as may be determined by the Government from time to time, in accordance with the Chief Justice.

(4) Until terms and conditions of service of officers and other employees of the District Authority are prescribed; their qualifications, procedure for recruitment and other conditions of service including disciplinary matters, leave, provident fund and other matters shall be the same as that of the officers and employees of a similar category in the Government and rules relating thereto shall mutatis mutandis apply"

(emphasis added)

10. Though another set of Rules to deal with Group ''C' and Group ''D' employees of SLSA, DLSA, High Court Legal Services Committee and Taluk Legal Services Committee have been framed vide Notification dated 26.10.2009, i.e., U.P. Legal Services Authorities and Committees (Employees) Services Rules, 2009 (hereinafter referred to as "Rules, 2009"), in purported exercise of power under Sub-section (1) read with clauses (e) (g) (j) and (m) of sub section (2) of Section 28 of Act, 1987, but since the matter in the present case is of a period, prior thereto, therefore, Rules, 2009 have no application in the case in hand.

11. Now coming to the facts of this case, it is evident that petitioner was appointed as Junior Clerk in the pay scale of Rs. 354-550/- accepting recommendation made by District Judge and Chairman, District Legal Aid and Advice Committee, Mainpuri. The above letter of appointment dated 18.7.1985 was issued by Chairman, U.P. Legal Aid and Advisory Board, Lucknow in purported exercise of power under the Government Order dated 10.4.1985. The aforesaid appointment of Junior Clerk was made in District Legal Aid and Advice Committee, Mainpuri. Admittedly, the aforesaid appointment was not under Act, 1987 but under the then provisions of State Government, made in respect to U.P. Legal Aid and Advice Board.

12. After enactment of Act, 1987 and creation of different Legal services Authorities, by virtue of Rule 12 Sub-rule 3 of Rules, 1996, petitioner's services came to be merged with DLSA and he became employee thereof. Sub-rule 13(4) of Rules, 1996 clearly provides that until the terms and conditions of service of Officers and other employees of District Authority are prescribed, their qualifications, procedure for recruitment and other conditions of service including disciplinary matters, leave, provident fund and other matters shall be the same as that of the Officers and other employees of a similar category in the Government and Rules relating thereto shall mutates mutandis apply. Therefore, petitioner was entitled to be governed by such provisions applicable to other employees of State Government, equal in status and rank of Junior Clerk. In respect to disciplinary matters, no separate Rules were framed for the employees of DLSA. Obviously, they would have been governed by Civil Services (Classification, Control and Appeal) Rules, 1930 as applicable in U.P., till 1999 when the aforesaid Rules stood replaced by U.P. Government Servants (Discipline and Appeal) Rules, 1999 (hereinafter referred to as "Rules, 1999). Similar provisions, as applicable to State Government employees, in my view, therefore, shall also bring in the protection available to the State Government employee under Article 311 of the Constitution.

13. The petitioner was placed under suspension by Chairman, DLSA, Mainpuri vide order dated 20.1.2003 and a charge sheet dated 18.6.2003 thereafter was served upon him by Enquiry Officer, Special Judge (S.C./S.T. Act), Mainpuri on behalf of District Judge, Mainpuri. After completion of enquiry, report dated 9.1.2007 was submitted, holding, that petitioner had failed to discharge duties with devotion, guilty of dereliction of duty and indiscipline which is a misconduct under Rule 3 (1) of U.P. Government Servants Conduct Rules, 1956. Agreeing with the aforesaid enquiry report, the Chairman, DLSA, Mainpuri, issued a show cause notice dated 7.2.2007, furnishing a copy of enquiry report to petitioner and giving him an opportunity to show cause as to why punishment of removal be not imposed upon him, besides, lodging first information report of misfeasance of allotted money of Rs. 2830/-. Petitioner submitted representation dated 19.2.07 against findings in enquiry report. Thereafter impugned order dated 6.4.2007, removing petitioner from service, has been passed by Chairman, DLSA, Mainpuri.

14. Learned counsel for petitioner stressed upon the very jurisdiction and authority of Chairman, DLSA, Mainpuri, respondent no. 4 in removing petitioner from services on the ground that in view of Article 311 (1) of the Constitution, petitioner having actually been appointed by Chairman, State Legal Aid and Advice Board, which subsequently stood replaced by SLSA, created under the Act, 1987, he could not have been removed from service by an authority, lower in rank to the authority who appointed him.

15. In the counter affidavit, which has been sworn by Civil Judge (Senior Division) Mainpuri, the defence taken is that the employees of District Legal Aid and Advice Committee, working before commencement of Rules, 1996, became Officers and employees of DLSA. The Legal Aid Advice Board, Lucknow stood abolished. Therefore, appointing authority of petitioner became President, DLSA. Hence the order of removal passed by the said authority is well within his jurisdiction and cannot be said to be illegal.

16. The only question which has to be considered by this Court is "whether the order of removal dated 6.4.2007, a copy whereof has been filed as Annexure 4 to the counter affidavit, has been passed by a competent authority or not".

17. From the facts stated above, it cannot be disputed that petitioner was actually appointed by a person holding office of chairman/ President/ Adakshya, U.P. State Legal Aid and Advisory Board. The aforesaid authority is higher in rank to the Chairman, DLSA. That being so, it cannot be doubted that impugned order imposing punishment of removal upon petitioner has been passed by an authority lower in rank to the authority by whom petitioner was actually appointed.

18. Protection available under Article 311 (1) goes to the extent that if appointment, actually has been made by an Officer of higher rank, such appointee shall not be removed or dismissed from the office by an order passed by an authority lower in rank. This aspect came to be considered by this Court in Khwaja Razi-Ul Hasan Vs. Union of India and others 1984 UPLBEC 1202 wherein relying on Apex Court's decision in Krishna Kumar Vs. Divisional Assistant Electrical Engineer, Central Railway AIR 1979 SC 1912 and another decision of Gujarat High Court in Hariprasad Raghuram Dave Vs. State of Gujarat and others AIR 1965 Guj. 283, this Court held that whether an authority is subordinate in rank to another has to be determined, it would be with respect to state of affairs existing on the date of appointment. The state of affairs would include not merely the grade but also the rank and whether there is an element of subordination as contemplated under Article 311 (1) of the Constitution.

19. The interpretation of Article 311 (1) also came to be considered by Apex Court in Sampuran Singh Vs. State of Punjab AIR 1982 SC 1407 where the Court held that in view of Article 311 (1) of the Constitution, removing authority cannot be inferior or subordinate in rank. It observed:

"Art. 311(1) of the Constitution enjoins that no person who is a member of a civil service of the Union or an All India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Under this Article the authority to remove should not be subordinate to that by which he was appointed."

20. This view has been followed by this Court in Ram Vishal Verma Vs. State of U.P. and others (Civil Misc. Writ Petition No. 51131 of 2004) decided on 14.3.2007.

21. Looking to the exposition of law, as laid down above, in the case in hand, it cannot be doubted that the President, DLSA is an authority subordinate in rank to the authority who actually appointed the petitioner, i.e. Chairman, U.P. State Legal Aid and Advisory Board. Consequently, the impugned order of punishment cannot sustain.

22. The writ petition is allowed. Impugned order dated 6.4.2007 passed by respondent no. 4 is hereby quashed. Petitioner shall be entitled to all consequential benefits, besides the cost, which I quantify to Rs. 5,000/- (Rupees five thousand).

Dt. 2.8.2013

PS