Brijesh Kumar vs State Of U.P. Thru ...
2015 Latest Caselaw 5557 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 4
 

 
Case :- SERVICE BENCH No. - 1950 of 2015
 
Petitioner :- Brijesh Kumar
 
Respondent :- State Of U.P. Thru Prin.Secy.Science & Technology Lko.& Ors.
 
Counsel for Petitioner :- Sanjay Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Depak Seth
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Attau Rahman Masoodi,J.

Heard learned Counsel for the petitioner Sri Sanjay Kumar Srivastava, learned Addl. Chief Standing Counsel Sri Shukla for the respondent No.1 and Sri Deepak Seth for respondent Nos. 2 to 4.

Learned Counsel for the respondents have also obtained instructions in relation to the issues that have been raised in the present writ petition.

The petitioner has come up against the orders of State Government dated 29.6.2015 and 7.12.2015 whereby his promotion to the post of Administrative Officer in the respondent No.2 - Remote Sensing Applications Centre on 24.9.2014 has been cancelled on the ground that the selection of the petitioner was vitiated on account of the incorrect constitution of the Departmental Promotion Committee as there was absence of permission and consent of the Deputy Secretary of Science and Technology, Government of Uttar Pradesh.

The petitioner has challenged these orders on several grounds, contending that the facts that have led to the aforesaid grounds of challenge would demonstrate that the State Government has proceeded to exercise powers without adverting to its own authority to exercise such powers, as also the manner of exercise of such powers without giving any opportunity to the petitioner or to the respondent Nos. 2 to 4 to place their version with respect to the alleged defect in the constitution of the Departmental Promotion Committee.

The narration of facts in the writ petition that appear to be undisputed are that the respondent No.2 - Centre is an autonomous body even though funded by the State Government and is governed by a Memorandum of Association and Rules and Regulations. The issue of taking disciplinary action and interference by the State Government came up for consideration before this Court in the case of R.S. Chaturvedi Vs. State of U.P. And others, Writ Petition No.1191 of 1991 that was finally allowed vide judgment dated 9.4.1993 clearly explaining the status of the said Centre and with no powers to the State Government in relation to disciplinary action against an employee particularly relating to suspension as was involved in that case. The provisions of Rule 23 of the Rules of Association of the Centre was directly under consideration that is extracted here under:-

"23 (1) The State Government may from time to time issue directives to the Centre as to exercise and performance of its functions in matters involving the security of the State or substantial public interest and such other directives as it may consider necessary in regard to the finances and conduct of business and affairs of the Centre and in the like manner may vary and annul any such directive (s). The Centre shall give immediate effect to the directive (s) so issued.

(2) The State Government may call for such returns, accounts and other information with respect to the properties and activities of the Centre as may be required from time to time."

The Court in the above mentioned decision held that the hierarchy as was indicated in the memorandum of association, the power of the State Government extends to issue directives for the proper exercise and performance of the function of the Centre as may be considered necessary with regard to the business and affairs of the Centre with residuary powers to vary and annul any such directives. According to the said Rules, the Centre is obliged to abide by the directives so issued. The State Government has been further given the power to inspect and call for information about the activities of the Centre as contained in sub rule (2) of Rule 23.

In that context the Division Bench ruled that the Chief Minister of the State being the President of the Centre, by itself, would not have the effect of relationship of Master and Servant between an employee of the Centre and the State Government. The Chief Minister being the ex-officio President would act only in the capacity of the President as defined under the memorandum of association. Paragraph No.12 of the judgment categorically deals with the interpretation of Rule 23 which is as follows:-

"12. Rule 23(1) of the aforesaid rules provides that the State Government may from time to time issue directives to the Centre as to exercise and performance of its function in matter involving security of the State are substantial public interest are such other directives as it may consider necessary in regard to function and conduct of business and affairs of the Centre and in the like manner may vary and annul any such directives. The Centre shall give immediate effect to the directives so issued. Even if it is assumed that the approval given by the Chief Minister to the suspension of the petitioner and the intention of disciplinary proceeding against him amounts to a directive of the State Government under rule 23(1), it should have been given immediate effect by the Centre and it was for the Centre to decide whether or not to suspend the petitioner in compliance with the said directives and to take action accordingly. There is nothing on record to show that any such decision or action has been taken by the Centre. It significant that Rule 25 of the said rule provided that all action taken by the State Government in connection with the affairs of the Centre before its registration under the society registration act, 1860 shall notwithstanding anything contained in these rules be deemed to have been taken by the Centre. Rule 25 refers to action taken before the registration of the society and not to actions which are taken after such registration. Had it been shown that the petitioners was appointed as Director of the Centre before its registration. It might have been possible to construe in view of Rule 25 that the appointment shall be deemed to have been made by the Centre. But as discussed above, the petitioner was appointed by the council before the registration of Centre as an independent society. Moreover, the power of appointment which is exercise by the State Government under the proviso to rule 12 is the power of the governing body. The State Government does not thereby acquire any power to suspend are take other disciplinary action in exercise of the general and inclusive power in such matter vested in the appointing authority. The opposite parties can derive no advantage from Balvantrai Ratilal Patel v. State of Maharashtra A.I.R. 1968 Supreme Court 800 on which they have placed reliance. If it is held that the Government has power as appointing authority to suspend or remove for dismiss the petitioner, then the power of re-appointment will also have been concerned to the State Government, which will be contrary to the expressed provisions of rule 12 of the aforesaid rules. The impugned order of suspension having been passed by the State Government is, therefore, void and illegal and is liable to be quashed."

It has been, therefore, held that the State Government does not by virtue of the aforesaid provisions acquire any power to take disciplinary action in exercise of the general and inclusive powers in such matters which is vested in the appointing authority.

In the instant case, the issue is relating to the promotion of the petitioner as an Administrative Officer. Promotion was being denied to the petitioner as a result whereof the petitioner had to file a writ petition, being Writ Petition No.1614 of 1998, which was allowed on 6.9.2013 with a direction to consider the case of the petitioner for promotion treating the post to be a promotional post in accordance with the relevant Government Orders and other provisions within a specified period of time.

Appointments have to be made under the service rules framed by the Governing Body under Rule 22 extracted herein under:-

"22 (1). Members of the staff of the Centre shall be appointed in accordance with the service rules made by the Governing Body.

(2) Till the service rules are made in accordance with sub rule (1), the prior approval of the Governing Body shall be necessary in case of every such appointment.

(3) The terms and conditions of service of the members of staff appointed under sub rule (1) or sub rule (2) shall be such as may be approved by the Governing Body from time to time."

The attention of the Court has been drawn to the General Service Rules, 1985, framed by the Centre in exercise of the powers under Rule 22 read with Rule 5 of the Rules of Association. The said General Service Rules in relation to recruitment and appointment are contained in Chapter-III thereof which defines the sources of recruitment including promotion under rule 14 of the 1985 Rules. The procedure for recruitment by promotion is provided under Rule 16 thereof and sub rule (3) of Rule 16, which is applicable in the present controversy, is extracted here under:-

"16 (3) The promotion of Administrative & Auxillary Technical employees will be made in accordance with such rules and orders which are applicable to the servants of the State Government drawing similar scales of pay."

It appears that the promotion was being delayed as a result whereof the petitioner preferred Contempt Application No.1206 of 2014, whereupon the Centre proceeded to take a decision to hold the Departmental Promotion Committee and, accordingly, constituted a Committee for such consideration. Learned Counsel for the respondents Sri Shukla and Sri Seth have produced the office memorandum dated 16.9.2014 indicating a 6 member Departmental Promotion Committee having been constituted including Dr. Harish Chandra Gautam, Deputy Secretary of the Department of Science and Technology, Government of Uttar Pradesh, as one of the Members. A copy of the proceedings dated 19.9.2014 of the Departmental Promotion Committee has also been placed before the Court which indicates that it has been signed by 5 of the Members except Dr. Harish Chandra Gautam, the nominee of the State Government.

The said decision of the Departmental Promotion Committee was given effect to by the issuance of the office order dated 24.9.2014 granting promotion to the petitioner.

It is this promotion which is now the bone of contention between the parties.

The aforesaid promotion order was not being accepted by the Officiating Director Sri Rajiv Mohan, who passed an order on 6.7.2015 on the ground that in view of the Government Orders that have been issued from time to time fixing the Pay Band for the post of Administrative Officer and the restructuring of the cadre, the petitioner is not entitled to occupy the said post and consequently cancelled the promotion order dated 24.9.2014. This was done on the foundation of an order passed on 29.6.2015 by the same Deputy Secretary Dr Harish Chandra Gautam, who had not put his signatures on the proceedings of the Departmental Promotion Committee. This order dated 29.6.2015 is Annexure No.1 to the writ petition.

The petitioner questioned the order dated 6.7.2015 of the Incharge Director by filing an appeal before the Chairman of the Centre on the ground that the said order cancelling his promotion is by way of reversion which appeal was allowed on 19.11.2015 and a copy of the said order is Annexure No.22 to the writ petition. It appears that the said order was taken notice of by the State Government and without issuing any notice or opportunity either to the petitioner or to the Centre, the impugned order dated 7.12.2015 has been passed setting aside the aforesaid appellate order dated 19.11.2015 on the ground that the Chairman had no authority to exercise any such power of appeal, and simultaneously the order of the State Government dated 29.6.2015 has been restored whereby the petitioner's promotion had been cancelled.

Learned Counsel for the petitioner submits that keeping in view the judgment of the Division Bench in the case of R.S. Chaturvedi (supra) such exercise of powers by the State Government is without authority in law and, therefore, the State Government has committed a manifest error by proceeding to annul the promotion order of the petitioner. The second ground of challenge is that both the order dated 29.6.2015 as well as order dated 7.12.2015 have been passed without giving any notice or opportunity to the petitioner or without having the version of the Centre.

Having considered the submissions raised and having perused the records as also the proceedings of the Departmental Promotion Committee and the office memorandum whereby the Departmental Promotion Committee was constituted, we find that the State Government has firstly proceeded to assume powers to annul a promotion which does not appear to be traceable to Rule 23 of the Rules of Association. Such powers are with the Governing Body under Rule 22. The aforesaid powers under Rule 22 manifested itself in the framing of the General Service Rules of 1985 extracted herein above. The same leaves no room for doubt that specific rules have been framed providing that promotion shall be in accordance with such rules and orders that are applicable to servants of the State Government drawing similar scales of pay. This, however, does not mean that the State Government becomes the promoting authority. The authority remains with the Centre as is envisaged under the 1985 Rules which power is drawn from Rule 5 of the Rules of Association read with Rule 22 indicated herein above. The control and management of the affairs of the Centre clearly vests in the Governing Body and not in the State Government. The State Government cannot under Rule 23, therefore, usurp the powers which are specifically reserved for the governing body of the Centre under the Rules of Association indicated herein above. The order, therefore, passed by the Secretary on 29.6.2015 has no Statutory backing in relation to the promotion of the petitioner and the exercise of such power is even otherwise not in accordance with law.

Secondly, the reason given therein is that the Departmental Promotion Committee had not been constituted in accordance with the government pattern. The Departmental Promotion Committee, which has been constituted, clearly records the inclusion of the Deputy Secretary of the Department of Science and Technology, Government of Uttar Pradesh. The finding, therefore, recorded in the order dated 29.6.2015 is incorrect and contrary to the records and is, therefore, clearly vitiated.

Thirdly, the proceeding of the Departmental Promotion Committee clearly mentions the name of Dr Harish Chandra Gautam, who has not put his signatures on the minutes of the said proceedings for reasons best known to the Officer. We find no such justification more so when the same Officer has proceeded to pass the order dated 29.6.2015. The Officer, who passed the order dated 29.6.2015 has conspicuously not indicated anything about his being a Member of the said Departmental Promotion Committee nor has he indicated as to why he did not choose to sign the proceedings. The order, therefore, in our opinion clearly suffers from malice in law inasmuch as this was a colourable exercise of power by the same person, who appears to have not signed the proceedings and the same was made an excuse to pass orders cancelling the promotion. The order, therefore, cannot be sustained on this ground as well. The power to appoint, promote or deal with the service conditions of the employee is clearly with the respondent No.3 and not with the State Government.

Fourthly, what we find is that the impugned order dated 29.6.2015 and 7.12.2015 both have been passed clearly in violation of principles of natural justice and without taking into account the aforesaid facts relating to the constitution of the Selection Committee, which was on record.

In such circumstances, this Court is of the firm opinion that the impugned orders are clearly an outcome of the powers erroneously sought to be exercised by the State Government in the name of the directives as envisaged under Rule 23, which, in our opinion, is contrary to the view expressed by the Division Bench in the judgment of R.S. Chaturvedi (supra) and the provisions noted above. The impugned orders dated 29.6.2015, 6.7.2015, 11.8.2015 and 7.12.2015, therefore, being unsustainable and clearly in violation of principles of natural justice, we quash the same.

At this stage we may, however, mention that the issue with regard to the promotion of the petitioner being not in accordance with the relevant Government Orders or not being in accordance with rules of promotion, can be looked into by the Centre and its authorities. It is, therefore, open for the respondent - Centre to reconsider or indicate any infirmity which may exist, if at all, about the promotion of the petitioner in accordance with law, but only after giving an opportunity to the petitioner further provided only if the promotion suffers from any fraud or misrepresentation.

The writ petition is, accordingly, allowed.

Order Date :- 18.12.2015

Irshad