Bombay High Court
Chandrapur District Central ... vs The State Of Maharashtra, Thr. ... on 3 March, 2023
Bench: Vinay Joshi, Valmiki Sa Menezes
1 wp8041.22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 8041/2022
1. Chandrapur District Central
Co-operative Bank Ltd., through
its Chairman, Civil Lines, Chandrapur,
Tah. & Dist. Chandrapur.
2. Shri Santoshsingh S/o. Chandansingh
Rawat, aged 60 yrs., Occ. Business,
R/o. At post Mul, Ward No. 11, near Rest
House, Mul, Tah. Mul, Dist. Chandrapur.
PETITIONERS
VERSUS
1. The State of Maharashtra,
through its Secretary of Ministry
of Co-operation, Mantralaya,
Mumbai, Maharashtra.
2. The Commissioner of Co-operation,
Pune, State of Maharashtra, Central
Building, Pune, Tah. & Dist. Pune.
3. Divisional Joint Registrar, Co-operative
Societies, Nagpur, Tah. & Dist. Nagpur.
4. District Deputy Registrar Co-operative
Societies, Chandrapur, Tah. & Dist.
Chandrapur.
5. Shri Manohar S/o. Laxman Pahunkar,
aged 58 years, Occ. Business,
R/o. Laxmi Nagar, Wadgaon Road,
Near Raj Lawn, Chandrapur, Tah. &
Dist. Chandrapur.
6. Shri Gajanan S/o. Wasudevrao Patode,
Aged 42 yrs., R/o. Dongargaon, Tah.
Nagbhid, Dist. Chandrapur.
2 wp8041.22.odt
7. State of Maharashtra, through
its Special Work Officer and Joint
Registrar, Co-operative Societies,
Department of Co-operation, Mumbai.
.....RESPONDENTS
1. Sudhakar S/o Maluji Arjunkar,
aged about 62 yrs., Occ. Social Work,
R/o. Nanaji Nagar, Wadgaon Ward,
Tah. & Dist. Chandrapur.
......INTERVENER
(Application [caw] No. 2865/2022)
---------------------------------------------------------------------------------------------------
Mr. S.V. Manohar, Senior Advocate with Mr. A.M. Ghare, Advocate for
petitioners.
Mr. R.L. Khapre, Senior Advocate with Ms. N. P. Mehta, Assistant
Government Pleader for respondent Nos. 1 to 4 & 7.
Mr. N.C Nagapure, Advocate h/f Mr. A.V. Band, Advocate for respondent
Nos. 5 & 6.
Mr. S.K. Mishra, Senior Advocate with Mr. K. Deogade, Advocate for
intervener.
--------------------------------------------------------------------------------------------------
CORAM : VINAY JOSHI AND
VALMIKI SA MENEZES JJ.
JUDGMENT RESERVED ON : 20.01.2023
JUDGMENT PRONOUNCED ON : 03.03.2023
JUDGMENT (PER VINAY JOSHI, J.)
Rule. Rule made returnable forthwith. Heard finally by
consent of learned counsel appearing for respective parties.
2. The principal challenge in this petition is to the competency of
Chief Minister in granting stay to the staff recruitment process of
petitioner- Co-operative Bank vide order dated 29.11.2022.
3 wp8041.22.odt
3. Petitioner No.1 Chandrapur District Central Co-operative Bank
Ltd., is registered under the provisions of the Maharashtra Co-operative
Societies Act, 1960 ('MCS Act'). Petitioner No.2 is elected Chairman of
the Petitioner No.1 Bank. Petitioner Bank is doing business of banking
under the licence of the Reserve Bank of India. Petitioner Bank has not
been funded in any manner by the State Government. The petitioner
Bank has its area of operation in entire revenue district of Chadrapur,
whilst head office at Chandrapur. Bank has 93 branches spread over the
entire Chandrapur District. The Bank has approved staffing pattern of
885 employees. In passage of time, several employees have been retired
resulting into shriking the strength to the extent of 525 employees only.
Resultantly 393 posts are lying vacant. In proximity, more posts would
lie vacant due to upcoming retirements.
4. The petitioner Bank is facing acute shortage of staff making it
difficult to run various Branches. The banking business has been largely
affected due to acute shortage of staff. Considering the said contingency
faced by the Bank, Board of Directors in meeting dated 18.11.2021
resolved to take necessary steps for filling up vacancies by undertaking
recruitment process. The District Deputy Registrar, Co-operative
Societies also attended the Board meeting dated 18.11.2021 and
partook in resolving about need of recruitment. It resolved to forward a
4 wp8041.22.odt
proposal to the Commissioner of Co-operation, Pune seeking approval
for undertaking recruitment process.
5. In pursuance of Board Resolution dated 18.11.2021, the
petitioner Bank sent proposal for approval to the respondent No.3,
Divisional Joint Registrar, Co-operative Societies, Nagpur for forwarding
the proposal to respondent No.2, Commissioner of Co-operation, Pune.
After considering the proposal and recommendations made by
respondent No.3 Divisional Joint Registrar, Co-operative Societies,
Nagpur, vide order dated 25.02.2022 Commissioner of Co-operation
accorded permission/sanction for undertaking recruitment process by
petitioner Bank. In accordance with the sanction, initial steps have been
taken by the Bank in the shape of issuing public advertisement inviting
applications from reputed agencies to undertake recruitment process.
6. It is petitioners' case that political opponent of the petitioner
No. 2 i.e. member of Parliament from Bhadrawati Constituency started
making false allegation against the petitioner. Writ petition
No. 2126/2022 was filed seeking appointment of Administrator for the
Management of petitioner Bank. In the said petition, notices have been
issued, however no interim orders have been passed.
7. The petitioner has received a communication dated
12.05.2022, by which recruitment undertaken by the petitioner Bank
has been stayed. The petitioner has challenged the stay order in Writ
5 wp8041.22.odt
Petition No. 2689/2022 which is pending. The petitioner also made
representation dated 11.11.2022 to the Minister, Co-operation for
vacating the stay. In response, the Minister of Co-operation after
considering the representation, vacated the stay which was
communicated vide letter dated 23.11.2022. The petitioner was about
to resume the recruitment process, however vide impugned order dated
29.11.2022, the Chief Minister has again stayed the recruitment process.
The petitioner learnt that respondent Nos.5 and 6 made certain
grievances to the Chief Minister, on which, without making inquiry and
hearing the petitioner, stay has been granted.
8. The petitioner has challenged the impugned order of the Chief
Minister inter alia on following grounds :-
(1) The Chief Minister has no jurisdiction to pass
the impugned order dated 29.11.2022 when the
Minister of Co-operation had already vacated the stay.
(2) The impugned order has been passed in patent
breach of principles of natural justice as the petitioners
have not been heard.
(3) The order under challenge has been passed
without assigning reasons.
(4) The Chief Minister has not verified the
allegations made in the representation, but without
application of mind has passed the impugned order.
6 wp8041.22.odt
(5) The petitioner Bank has followed requisite
procedure.
(6) The proposal for recruitment was sanctioned by
the Commissioner of Co-operation after making
necessary inquiry.
(7) The order has been passed on the a basis of a mere
representation made by the rival of the respondent
No.2.
(8) The impugned order is discriminatory and
politically motivated and passed at the behest of Local
Guardian Minister.
(9) The order does not consider that the Bank is
facing acute shortage of staff making it impossible to
run various Branches.
The petitioner therefore, seeks to quash the order dated 29.11.2022
passed by the Chief Minister granting stay to the recruitment process.
9. The petition came to be resisted by respondent Nos. 1 to 4 and
7 (State) vide its joint reply-affidavit dated 20.12.2022. The contents of
the affidavit have been sworn and verified by respondent No. 3 -
Divisional Joint Registrar, Co-operative Societies, Nagpur. In resistance,
it has been stated that initially the matter came up before the State
Government at the instance of complaint filed by the member of
Parliament Mr. Suresh Dhanorkar. The said complaint was processed by
the Co-operation Department, on which detailed note-sheet with
7 wp8041.22.odt
remarks of the Additional Chief Secretary of the Co-operation
Department has been prepared. On the basis of the note-sheet, stay was
granted to the recruitment process by the concerned Minister. It was
followed by the petitioners filing representation dated 11.11.2022. The
petitioners have suppressed material facts, therefore, the concerned
Minister has vacated the stay as per note-sheet, which was
communicated vide letter dated 23.11.2022. Again, complaints of
respondent No. 5 Mr. Manohar Pahunkar and respondent No. 6 Mr.
Gajanan Patode have been received raising grievance against the order
of vacating stay dated 23.11.2022. In pursuance of the said complaints,
summary inquiry was conducted by the Department of Co-operation. It
was revealed during inquiry that the term of existing body of the
petitioner Bank had expired in the year 2017 itself. However, as election
had not been held, the said body was continuing as an interim
arrangement.
10. It is stated that the existing Managing Body had earlier started
recruitment process and having indulged in corrupt practices,
offence was registered against ten Directors. The Director General
(Anti-Corruption), Maharashtra State has forwarded proposal to the
Chief Secretary to prosecute the Directors on account of
misappropriation. The Divisional Joint Registrar, Co-operative Societies
has also granted permission to prosecute all Directors. A special audit
8 wp8041.22.odt
was conducted and directions have been issued to register a First
Information Report regarding financial irregularities. It is alleged that
the present Board of Directors has indulged in malpractices and
defalcated a huge sum of near about rupees four crores. The Divisional
Joint Registrar, Co-operative Societies has initiated an inquiry in terms
of Section 88 of the MCS Act.
11. It is stated that all these aspects have been brought to the
notice of the Chief Minister who in turn directed the Co-operation
department to prepare a detailed note-sheet on all irregularities. The
Chief Minister has also directed the department to prepare a summary
note-sheet directing the department that the caretaker body cannot take
policy decisions. Accordingly a short summary note-sheet was placed
before the Chief Minister.
12. According to respondents, the stay order was vacated by the
Minister of Co-operation who acted under the Chief Minister. The Chief
Minister has power to vary, modify and vacate the orders passed by the
concerned Minister of the Co-operation. In-substance, it is stated that
the petitioners are a merely a care taker body which cannot take policy
decisions for initiating recruitment. The existing Board of Directors
were found indulging into corrupt practices for which criminal
prosecution has been launched against them, and thus, the order of stay
was necessitated by public interest.
9 wp8041.22.odt
13. Moreover, it is submitted that the Chief Minister has not yet
finally decided matter of revoking the permission granted by the
Commissioner of Co-operation on 17.02.2022. The recruitment process
is merely stayed and the petitioners would get an opportunity to put up
their case before the Chief Minister. These are the contentions, by which
the petition has been opposed.
14. We have allowed the intervention application of one
Mr. Arjunkar. He has principally supported the impugned order of stay
issued by the Chief Minister. He claims to be member of an Agricultural
Society which in turn is a member of the petitioner Bank. He has
narrated the history of some present and pending litigations between
the parties. He would submit that initially, when the Minister of Co-
operation had stayed the recruitment process vide order dated
12.05.2022, the petitioner had filed Writ Petition No. 2689/2022 which
is still pending. He has also intervened in the said petition also. The
intervener has filed Writ Petition No. 2126/2022 seeking appointment of
an the Administrator as the tenure of the existing Executive Committee
has come to an end in the year 2017. It is stated that one Mrs. Bawane
has filed a Writ Petition No. 4547/2017 challenging the validity of
Section 73AAA and Section 73B of the MCS Act. In the said petition,
stay has been grated to the election and all similar petitions have been
transferred to the Principal Seat of this Court.
10 wp8041.22.odt
15. Mr. Mishra, learned Senior Counsel appearing for the
intervener would submit that the petitioner being a caretaker body,
cannot take policy decisions. In this regard, he relied on the decision of
the Supreme Court in the case of Suresh &. anr. Vs. State of Maharashtra
& ors., (Petition(s) for Special Leave to Appeal (C) No.(s). 6/2021,
decided on 18.02.2021). Bare perusal of the said order indicates that
purely towards interim arrangement, the Supreme Court has restrained
the then Managing Committee from taking policy decisions. In the said
case, statement was made that an Administrator would be appointed
within one week, on this assurance, the interim order was passed. The
said order was passed on a different footing and therefore, it would not
assist the intervener in any manner.
16. The intervener has narrated a long history about alleged
malpractices in recruitment process indulged by the petitioners and the
criminal action taken thereon. It is primarily contended that since the
term of the existing Board of Directors has expired in the year 2017 and
the petitioners being a caretaker body, cannot take a policy decision. In
short, the intervener has resisted the petition inter alia for above
reasons.
17. The learned counsel for the respondents as well as intervener
also emphasized the point that the petitioner was a caretaker body and
11 wp8041.22.odt
cannot take a major decisions of undertaking recruitment process.
Particularly, it has been submitted by the intervener that in earlier
recruitment process, there was larger scale malpractice for which offence
was registered against most of the Directors. Several related documents
have been produced to substantiate this contention. Basically, the
challenge in this petition is limited to the extent of authority of the Chief
Minister to grant stay. Therefore, we need not undertake the exercise of
evaluating the petitioner's credentials for conducting recruitment
process.
18. Undisputed facts of the case are as below:-
(i) Petitioner No.1 is a Co-operative Society
registered under the provisions of the MCS Act, doing
business of banking.
(ii) Petitioner No.2 is elected President of Petitioner
No.1 Bank. The existing Managing Committee was
elected in the year 2012 and the term expired in the
year 2017.
(iii) By virtue of order passed in writ petition,
election of the Managing Committee has been stayed.
(iv) Though its term has expired, the Managing
Committee is functioning as a care taking body.
(v) The head office of the petitioner Bank is at
Chandrapur having 93 branches in the entire District.
Approved staffing pattern of the petitioner Bank is of
885 employees whilst 393 posts are lying vacant.
12 wp8041.22.odt
(vi) The petitioner Bank has passed resolution for
initiating process of recruitment.
(vii) The District Deputy Registrar vide
communication dated 10.12.2021 has forwarded
proposal to the Commissioner of Co-operation, Pune
with his recommendations.
(viii) The Commissioner of Co-operation vide
communication dated 25.02.2022, has granted
approval for undertaking recruitment process.
(ix) The Divisional Joint Registrar vide
communication dated 12.05.2022 has stayed the
recruitment process.
(x) The Minister of Co-operation has vacated the
stay vide communication dated 23.11.2022.
(xi) The Chief Minister has again granted stay to the
recruitment process vide remark (page 80) on
complaint dated 29.11.2022.
19. Some reference is required to be made to some proceedings
pending in Court. The petitioner Bank has filed Writ Petition No.
2689/2022 challenging the communication dated 12.05.2022, whereby
initially stay was granted to the recruitment process which is pending.
Mr. Vidhate and Mr. Arjunkar had filed Writ Petition NO. 2126/2022
seeking appointment of an Administrator to the petitioner Bank, in
which notices were issued. Writ Petition No. 4547/2017 was filed by
13 wp8041.22.odt
Mrs. Bawane challenging the constitutional validity of Section 73AAA
and Section 73B of the MCS Act. Several similar petitions have been
filed and all are transferred to the Principal Seat and stay was granted to
the election.
20. The learned senior counsel Mr. Manohar appearing for
petitioner Bank initially took us through the petition to contend that
there is acute need of undertaking recruitment process. Approved
staffing pattern of employee was 885, out of which working strength is
of 521 employees. At present 393 posts are lying vacant, therefore, it is
difficult to run various branches of the petitioner Bank. Considering
extreme urgency, the Board of Directors in its meeting dated 18.11.2021
resolved to take steps to undertake recruitment process. The said factual
aspect is not disputed by the other side.
21. It is the petitioner's contention that the Bank has followed due
process of obtaining permission from respondent No. 2 Commissioner of
Co-operation, Pune as per guidelines issued by the National Bank for
Agricultural and Rural Development ('NABARD'). The proposal was
verified by the District Deputy Registrar and recommended to the
Commissioner of Co-operation who after considering the matter before
it, has granted approval. It is submitted that the due process was
followed by obtaining permission. Though initially the Minister of Co-
14 wp8041.22.odt
operation has stayed the recruitment process, however after realizing
the exigency, has vacated the stay.
22. The main thrust of the arguments of Mr. Manohar is that the
Chief Minister lacks jurisdiction/authority to stay the order passed by
the concerned Minister. On the other hand, Mr. Khapre, learned senior
counsel appearing for respondent Nos. 1 to 4 and 7 resisted the
submission by contending that the Chief Minister is head of the Council
of Ministers and he is responsible for the acts of the Ministers. The
Chief Minister has every power to review the orders passed by the
Minister and therefore, there is no illegality in passing the impugned
order of stay. Moreover, he would submit that the Chief Minister has
merely stayed the recruitment process by directing to initiate inquiry.
The matter is under process, and therefore petition is pre-mature.
Besides that some other grounds have been canvassed to state that the
petitioner being caretaker body, cannot take a policy decision like the
sensitive issue of holding recruitment process. It has been stated that in
the past, the petitioners have misappropriated huge sums during the
recruitment process, for which criminal action has been initiated.
23. Basically, we are not going into the factual aspect about
fairness of undertaking recruitment process. The principal issue that
falls for our consideration is restricted to the aspect, as to whether the
Chief Minister has power to stay the order passed by the Minister of the
15 wp8041.22.odt
concerned department i.e. Minister of Co-operation. Both sides have
advanced arguments to justify their respective stand.
24. Initially Mr. Manohar took us through various provisions
contained under Part-VI of the Constitution of India. Article 154 of the
Constitution of India vests the executive power of the State in the
Governor, to be exercised by him either directly or through officers
subordinate to him in accordance with the Constitution. As per Article
163, there would be a Council of Ministers with the Chief Minister as the
head to aid and advise the Governor in the exercise of his functions,
except insofar as he is, by or under the Constitution required to exercise
his functions or any of them, in his discretion. It is on this premise that
the conduct of Government business is designed under Article 166 of the
Constitution of India. Under Clause (1) of Article166, all executive
action of the Government of a State is enjoined to be taken in the name
of Governor. Clause (3) makes it incumbent on the Governor to frame
rules for the more convenient transaction of the business of the
Government of the State and for the allocation, amongst the Ministers,
of the said business, insofar as it is not one with respect to which, the
Governor is by or under the Constitution required to act in his
discretion.
25. Contextually, we have been taken through The Maharashtra
Government Rules of Business and Instructions issued in exercise of the
16 wp8041.22.odt
powers conferred by Clause (3) of Article 166 of the Constitution of
India.
26. Rules 4 and 5 of the Rules of Business provides the mechanism
of transacting business through various departments as specified in the
First Schedule, and assignment of departments among the various
ministries. For ready reference, Rules 4 and 5 of the Business Rules are
extracted herein below:-
Rule 4.
The Business of the Government shall be transacted in
the Departments specified in the First Schedule and shall be
classified and distributed between those Department as laid
down therein.
Rule 5.
The Governor shall on the advice of the Chief Minister
allot among the Ministers the business of the Government by
assigning one or more Departments or part of Departments to
the charge of a Minister :
Provided that, nothing in this rule shall prevent the
assigning of one Department to the charge of more than one
Minister.
27. Our attention has been invited to Rule 9 pertaining to cases to
be brought before the Council of Ministers in terms of the Second
Schedule to the Rules. It empowers the Chief Minister or the Minister-
in-charge with the consent of the Chief Minister to bring the subject
before the Council of Minsters and reads as under:-
Rule 9.
All cases referred to in the Second Schedule shall be
brought before the Council -
17 wp8041.22.odt
(i) by the direction of the Governor under clause (c) of
Article 167;
(ii) by the direction of -
(a) the Chief Minister; or
(b) the Minister-in-charge of the case with the consent
of the Chief Minister:
Provided that, no case in regard to which the Finance
Department is required to be consulted under rule 11 shall, save
in exceptional circumstances under the directions of the Chief
Minister, be discussed by the Council unless the Finance Minister
has had opportunity for its consideration.
Second Schedule to Rule 9 encompasses in all 28 subjects
which can be brought before the Council of Ministers.
28. Our attention has been invited to Rule 10 to contend that the
Minister-in-charge of a department shall be responsible for the business
of the concerned department and reads as under:-
Rule 10.
(1) Without prejudice to the provisions of rule 8, the
Minister-in-charge of a Department shall be primarily
responsible for the disposal of the business appertaining that
Department or part of the Department.
(2) Every Minister, every Minister of State, every
Deputy Minister and every Secretary shall transmit to the
Chief Minister all such information with respect to the
business of the Government as the Chief Minister may from
time to time require to be transmitted to him.
29. Mr. Manohar would submit that the executive power is vested
in the Governor whilst the Chief Minister is only head of Ministers. The
Governor can allocate business to the Minister on the advice of the Chief
Minister and the Minister-in-charge shall be the head of his portfolio. It
is submitted that the power of the Chief Minister is to the extent of
18 wp8041.22.odt
distribution of Business and not beyond that. Unless there is express
power conferred on the Chief Minister by way of Business Rules or
Instructions, he cannot act or take administrative decisions as a
Reviewing or Appellate Authority. The orders which are passed by the
Minister are the orders on behalf of the State Government. The Chief
Minister has no supervisory power to interfere with the orders of the
concerned Minister.
30. The main emphasis is laid on the submission that a Minister
cannot go beyond allocation of business specified under the Rules. The
Rules of Business do not confer power on the Chief Minister to review
orders of the Minister. Mr. Manohar took us through the instructions
regarding business of the Government issued under Rule 15 of the Rules
of Business. Our attention has been invited to Instruction No. 3 which
states that the particular subject shall be deemed to be belonging to
concerned department. The said Instruction No. 3 reads as under:-
Instruction No. 3.
(1) A case shall be deemed to belong to a
department to which under the Schedule to the Rules, the
subject matter thereof pertains or it mainly related.
(2) If any question arises regarding the
department to which a case belongs, the decision of the
Minister-in-charge of the Department concerned, if all such
departments are in charge of the same Minister, shall be final. If
such departments are in charge of different Ministers, who, after
discussion, are unable to agree as to the department to which
the case belongs, the Chief Minster shall decide the questions.
19 wp8041.22.odt
31. In order to impress that the ordinarily the business is to be
carried by the Minister-in-charge, Instruction No. 4 is pressed into
service by the petitioner which reads as under:-
Instruction No. 4.
Except as otherwise provided in these Instructions, cases
shall ordinarily be disposed of by, or under the authority, of the
Minister-in-charge, who may by means of standing orders give
such direction as he thinks fit for the disposal of cases in the
Department. Copies of such standing orders shall be sent to the
Governor and the Chief Minister.
32. It is submitted that Instruction No. 8 confers power on
Minister-in-charge to dispose all cases of the said department and he is
in control of the entire affairs of his department. For ready reference,
Instruction No. 8 is reproduced below:-
Instruction No. 8.
(1) Subject to the Rules and the other
provisions in these instructions, the Minister-in-charge may
dispose of all cases arising in departments which he controls.
(2) When a difference of opinion arises on any question
between departments which the same Minister controls, the
Minister may decide the question.
33. Mr. Manohar would submit that Instruction No. 15 only
specifies the class of cases which shall be submitted to the Chief Minister
before issuance of orders. According to him, besides Instruction No. 15,
the Rules of Business, or Instructions do not confer any power on the
Chief Minister. Instruction No. 11 only empowers the Chief Minister to
call for papers and nothing more than that.
20 wp8041.22.odt
34. By placing reliance on the decision of the Karnataka High
Court in the case of BPL Group of Companies Karmikara Sangha Vs.
State of Karnataka & Ors. ILR 1999 KAR 3520 , Mr. Manohar sought to
argue that the Chief Minister has no authority to interfere with the order
passed by the concerned Minister. In the said case, the issue pertained
to the Labour Department. The concerned Minister (Labour Minister)
had ordered payment of interim relief to a workmen to prohibit a strike.
However, the order was not issued due to the intervention of the Chief
Minister. In that context, the Karnataka High Court has examined the
provisions contained in the Karnataka Government (Allocation of
Business) Rules, 1977 ('Business Rules'). On examination, it was ruled
that all the business allotted to a department under the Business Rules
shall be disposed of by the general or special direction of the Minister-in-
charge. The Business Rules contemplates that the matter to be
transacted by the Labour Department, is to be dealt with by the
concerned Minister, namely Labour Minister, who alone was to dispose
of cases concerned with his department. Once he had passed such an
order, it ought to have been implemented. The intervention of the Chief
Minister in the matter was neither authorized nor permitted under the
Act, the Business Rules and the Transaction Rules and therefore, the
order of the Chief Minister was set aside.
21 wp8041.22.odt
35. Mr. Khapre took multiple stands to defend the impugned order
of stay. Initially, he relied on Instruction No. 11 to contend that the
Chief Minister had powers to take a decision in connection with any
department. The second stand taken was that the Chief Minister has
granted stay in the process of referring the subject to the Council of
Ministers. The third stand taken was somewhat contradictory, being that
the stay was not granted by the Chief Minister but was a Committee
decision, of which the concerned Minister of Co-operation was also
party, and thus, it assumes the character of a stay by the concerned
Minister.
36. Mr. Khapre specifically relied on Instruction No. 11 to contend
that the Chief Minister being head of the Council of Ministers, has every
authority to see papers relating to any department. He would submit
that power "to see" includes the power to decide. In this regard, he laid
emphasis on Instruction No. 11 which reads as under:-
Instruction No. 11.
Subject to the provisions of instructions 55-
(1) Where the Chief Minister desires to see papers
relating to any case in any Department any requisition made by
the Chief Minister in that behalf shall be complied with by the
Secretary in the Department in which the case belongs:-
(2) Where a Minister, Minister of State or a
Deputy Minister desires to call for papers belonging to another
Department he shall personally address a requisition for the
papers to the Minister-in-charge of that Department; and if
papers are urgently required, to the Secretary in the
Department to which the case belongs. In either case, the
Secretary shall submit the papers to the Minister-in-charge of
his department, who will decide whether the papers should be
shown to the Minister, Minister of State or Deputy Minister, who
22 wp8041.22.odt
has called for the papers. Before he decides to withhold the
papers, he should show them to the Chief Minister and take his
instruction in the matter.
(3) The Chief Secretary may ask to see papers
relating to any case in any Department, and any such requisition
shall be complied with by the Secretary in the Department
concerned.
37. It is submitted that Instruction No. 11 specifically empowers
the Chief Minister to call files from any Department and thus, it was
within his competence to deal with the subject which was allocated to
the Department of Co-operation. Moreover, Mr. Khapre took us through
Instruction No. 21 to contend that the Chief Minister is empowered to
direct that any case incorporated in the Second Schedule can be brought
for discussion before the Council of Ministers.
38. Instruction No. 21 reads as under:-
Instruction No. 21.
(1) The Chief Minister may direct that any case
referred to in the Second Schedule may, instead of being
brought up for discussion at a meeting of the Council, be
circulated to the Ministers for opinion, and if all the Ministers
are unanimous and the Chief Minister thinks that a discussion
at a meeting of the Council is unnecessary, the case shall be
decided without such discussion. If the Ministers are not
unanimous or if the Chief Minister thinks that a discussion at
a meeting is necessary, the case shall be discussion at a
meeting of the Council.
(2) If it is decided to circulate any case to the
Ministers, a memorandum giving a gist of papers relating to
such case which is circulated among the Ministers shall
simultaneously be sent to the Governor.
(3) When a case is circulated, the order of circulation shall be as
follows:-
(a) to the Ministers (other than the Minister-in-charge) in
order to juniority;
(b) to the Minister-in-charge;
23 wp8041.22.odt
(c) to the Chief Minister.
He took us through Item 26 of the Second Schedule which is in the
nature of a residuary subject, and reads as under:-
Clause 26.
Cases required by the Chief Minister to be brought before
the Council.
39. Endeavour was made to submit that Instruction No. 11
empowers the Chief Minister to call for papers and peruse of any
department and power to call for and see papers includes the power to
pass incidental orders. Moreover, it is submitted that Instruction No. 21
coupled with Item 26 of Second Schedule, authorizes the Chief Minister
to bring any subject before the Council of Ministers. It is argued that in
order to exercise this power, the Chief Minister has directed to initiate
inquiry and in the interregnum, granted stay. Thus, the action of
granting stay cannot be said to be beyond the competence of the Chief
Minister.
40. We have carefully examined rival submissions and considered
the relevant Rules of Business, and Instructions issued thereunder.
There is no dispute that Article 166 of the Constitution of India,
empowers the Governor to make Rules for smooth transaction of
business of the Government and for allocation of business amongst the
Ministers. Both learned senior counsels are in agreement that business of
24 wp8041.22.odt
the Government shall be transacted and governed by these Rules and
Instructions only. First Schedule to Rule 4 carves out 23
Departments/portfolios out of which the 23 rd subject is of Co-operation
and Textile Department. Undisputedly, the Governor shall allocate
business amongst the Ministers on the advice of the Chief Minister, and
the concerned Minister would be in-charge of that particular
department. There is no dispute that portfolio of Co-operation has been
assigned to a separate Minister, meaning thereby, that the said
department was not retained by the Chief Minister. The departments
shall be run through the Secretary of each department.
41. Rule 10(1) specifies that the Minister-in-charge of a particular
Department shall be primarily responsible for the disposal of business
pertaining to the concerned department. Rules by and large indicate
that though a particular department has been allocated to the Minister
by the Governor, on the advice of the Chief Minister, the said Minister
shall transact business of the allocated department and he would be
responsible for the same.
42. We are unable to see any Rule amongst Rule Nos. 1 to 15
which empowers the Chief Minister to intermeddle with the business of
a department assigned/allocated to another Minister. Neither do the
Instructions confer supervisory or appellate powers on the Chief Minister
to review or to reverse the decision or business, transacted by the
25 wp8041.22.odt
Minister-in-charge. Instruction No. 4 specifies that ordinarily, cases of a
particular department shall be disposed of by the Minister-in-charge or
under his Authority. Instruction No. 8(1) in particular provides that a
Minister-in-charge may dispose of cases arising from the Departments
with which he is in control. The orders passed by the concerned in-
charge Minister would assume the character of the order of State
Government.
43. Mr. Khapre has laid more emphasis on Instruction No. 11 to
contend that the Chief Minister has unbridled powers to deal with any
subject. No doubt, Instruction No. 11 authorizes the Chief Minister to
call for and see papers relating to any case in any department, but does
it mean that he can take a decision thereon? Unless there are express
power under Rules or Instructions, nothing can be assumed in that
regard. Instruction No. 11 pertains to inter department connectivity.
Sub-clause (1) authorizes the Chief Minister to see papers of any
department, whilst Sub-clause (2) provides a mechanism for a Minister
to call for papers from another department. Sub-clause (3) empowers
the Chief Secretary to see papers relating to any department.
44. The submission of learned counsel Mr Khapre that the term
"see papers" includes the authority to pass orders pertaining to any
department if accepted, then by the same analogy under Sub-clause (3),
the Chief Secretary can also pass orders in the subject of any department
26 wp8041.22.odt
as he is empowered under Instruction 11(3) to "see papers" of any
department. Reading of Instruction No. 11 only conveys that the Chief
Minister as well as the Chief Secretary has power to see papers of any
department, and on their desire, related department shall make the
papers available. However, as regards to the aspect of looking through
papers of other departments by a particular Minister, a separate
mechanism is provided under Clause (2) of Instruction No.11.
Therefore, Instruction No. 11 is restricted to see papers and in particular
authorizes only the Chief Minister and the Chief Secretary to have free
access to papers of all departments. It does not mean that they can pass
orders pertaining to other departments and such interpretation would
lead to absurdity.
45. Mr. Khapre, also relied on the decision of the Supreme
Court in case of Mr. Rajureshwar Associates Vs. State of Maharashtra
and others, AIR 2004 SC 3770 to contend that in terms of Rule 11, the
Chief Minister has authority to take decisions of any government
Department. The reliance is misplaced. The said case pertains to sale of
government land exceeding value of Rs. 5 lakhs. In that case, the Chief
Minister informally directed that there was no need to submit the case
before the Cabinet. Accordingly, the matter was not placed before the
Cabinet in terms of Rule 11(2) and therefore, the decision of
government, not to sell the land was upheld. Rather, it was observed
27 wp8041.22.odt
that the requirement under the Rules of Business cannot be bye passed.
The said decision in noway supports the respondents contention that
Rule 11 empowers the Chief Minister to take decisions about a matter
pertaining to any department. Though Mr. Khapre, has relied on the
decision of the Supreme Court in case of Narmada Bachao Andolan Vs.
State of M.P., AIR 2011 SC 3199 it has no relevance to the matter at
hand.
46. Mr. Khapre took another stand that in terms of Instruction No.
21, the Chief Minister can direct, that any case referred to in the Second
Schedule can be placed before the Council of Ministers. Reading of
Instruction No. 20 clarifies that Instruction No. 21 pertains to
Instruction No. 9, which relates to inter department affairs. Instruction
No. 9 is meant for the cases concerning more than one department.
Instruction No. 20 states that the inter department cases shall be
submitted to the Chief Minister with a view to obtain orders for
circulation in terms of Instruction No. 21. Thus, Instruction No. 21
provides a mechanism for considering any subject by circulation only.
Therefore, the submission in that regard is unacceptable.
47. On the same lines, Mr. Khapre took us through the powers of
the Chief Minister envisaged under Rule 9(ii)(a), which authorize the
Chief Minister to bring any subject contained in the Second Schedule
before the Council of Ministers. According to him in terms of Item 26 of
28 wp8041.22.odt
the Second Schedule, the Chief Minister can bring any subject before the
Council of Ministers. An attempt has been made to ague that since the
Chief Minister is empowered to bring any subject before the Council of
Ministers, in the present case he has directed to initiate inquiry and
granted stay with a view to bring the said subject before the Council of
Ministers. There can be no dispute that the Chief Minister can bring any
subject before the Counsel of Ministers, but it does not mean that he is
empowered to pass orders on any subject, before he places a matter
before the Council of Ministers.
48. We have examined the said submission on the factual
background of the case. According to Mr. Khapre, the Chief Minister was
desirous of placing the subject before the Council of Ministers, and
therefore granted stay. Though it is canvassed that the Chief Minister
would shortly take the matter before the Council of Ministers, however
the said submission has no factual foundation. There is nothing on
record nor in the affidavit in reply or note-sheet that indicates, that the
Chief Minister has undertaken or in the process of referring the matter to
the Council of Ministers in terms of powers vested under Rule 9(ii)(a)
of the Rules. In absence of specific stand, the said submission can not be
accepted, and even then he cannot pass orders on the subject while
bringing the case before Council.
29 wp8041.22.odt
49. Two-fold submission has been made, perhaps may be in the
alternative form. It has been submitted that the complaints of
respondent No. 5 Mr. Manohar Pahunkar and respondent No. 6 Mr.
Gajanan Patode were received by the office, note-sheet (page 153) was
prepared and placed before the Committee consisting of Executive
Officer, Joint Registrar, Co-operative Department, Additional Chief
Secretary, Minister concerned and the Chief Minister. That the said
committee has taken unanimous decision to stay the recruitment and
therefore, the order of stay also assumes a character of granting stay by
the concerned Minister. Effort was made to justify the stay ordre by
submitting that it was a decision of the Committee consisting, amongst
others the concerned Minister.
50. Apparently, multiple defences have been taken to justify the
impugned order of stay. Firstly, Mr. Khapre laid emphasis on the point
that the Chief Minister has power to grant stay, by virtue of Instruction
No. 11(1) with which we have dealt above. The second stand is that
since the Chief Minister is empowered to place any subject before the
Council of Ministers, in the said bid, he has taken up the matter and only
in the process of placing the subject before the Council of Ministers, has
granted a stay order. The third stand is somewhat contradictory to the
above submissions. It has been stated that note-sheet (page 153) was
placed before the Committee of which the Chief Minister was one of the
30 wp8041.22.odt
member including the Minister of Co-operation. It is argued that on said
note-sheet, though the Chief Minister has remarked to grant stay,
however according to Mr. Khapre the note-sheet was also signed by the
concerned Minister and thus, it assumes the character of a stay order
granted with concurrence of the Minister. As a matter of fact, no such
stand was taken by the State in its reply-affidavit dated 20.12.2022. The
reply is silent about formation of a Committee or that an unanimous
decision was taken by the Committee to grant the stay. The specific
stand taken by the State in para 10 of the reply-affidavit reads as
under:-
"10. That all these points were revealed before the Hon'ble
Chief Minister by the department orally by the Department
before the Hon'ble Chief Minister. That it is submitted that the
Hon'ble Chief Minister ordered the Department to prepare a
detailed note-sheet on all these irregularities, however, asked
the department to prepare summary note sheet asking the
department that the caretaker body cannot take policy decision
having regard to the urgency of the matter. That a short
summary note-sheet was placed before the Hon'ble Chief
Minister and said note-sheet is enclosed herewith as Annexure-
R-11 (page 153). That it is thus apparent that the stay was
vacated by the Hon'ble Minister of the Co-operation who always
acts under the Hon'ble Chief Minister and the Hon'ble Chief
Minister can vary, modify, vacate the orders of the Minister of
the Co-operation."
51. Rather, the above portion of the reply-affidavit is in the form of
justification to the order of stay granted by the Chief Minister. The reply
indicates that the matter was orally informed by the department to the
Chief Minister who in turn directed the Department to prepare a note-
sheet which is at Annexure-R-11 (Page 153). The reply further states
31 wp8041.22.odt
that the earlier stay order was vacated by the concerned Minister who
always acts under the Chief Minister and thus, the Chief Minister can
vary, modify and vacate the order of concerned Minister. The said reply
is contrary to the submission made before us, that the matter was placed
before the Committee and the decision to grant stay was a Committee
decision of which the concerned Minister was a member. Moreover, it is
not explained what was the constitution of the Committee and under
which Rules or Instruction the said Committee was created.
52. The matter can also be looked at from another angle. There is
an attempt at treating the note-sheet (page 153) as an order of the
concerned Minister which cannot be accepted. The first para of the
note-sheet itself is sufficient to shatter the submission made in this
regard. The crucial note-sheet reads as below:-
"i`[email protected] ojhy Jh-euksgj ikmudj o Jh- xtkuu
ikrksMs ;kaP;k fnukad 29-11-2022 i=kps d`i;k voyksdu Ogkos- lnj
i=koj ek-eq[;ea=h egksn; ;kauh "Hkjrh izfdz;syk LFkfxrh nsmu vgoky
lknj djkos" vls funsZ'k v-eq-l- ¼lgdkj o i.ku½ ;kauk fnys vkgsr-
2- lnj i=kr fnukad 23-11-2022 jksthP;k i=kUo;s panziwj
ftYgk e/;orhZ lgdkjh cWadsP;k Hkjrh izfd;ojhy mBfoysY;k Lfkfxrh
jn~n dj.ksckcr fouarh dsyh vkgs-
3- panziwj ftYgk e/;orhZ lgdkjh cWadsus fn-1-12-2021 jksthP;k
i=kOnkjs cWadsPkk 360 ins ljGlsosOnkjs Hkjrh dj.;kl ekU;rk
feG.;kckcrpk izLrko dk;ZokghLro lgdkj vk;qDr o fuca/kd]
lgdkjh laLFkk ;kapsdMs foHkkxh; lgfuca/kd] lgdkjh laLFkk]
ukxiwj ;kaP;k f'kQkj'khlg lknj dsyk gksrk- cWadspk izLrko rlsp
foHkkxh; lgfuca/kd] lgdkjh laLFkk] ukxiwj ;kaps f'kQkj'khuqlkj
lgdkj vk;qDr dk;kZy;kdMhy fnukad 17-2-2022 jksthps i=kOnkjs
cWadsl fyfid Js.khrhy 261] f'kikbZ Js.khrhy 97 o fLoij Js.khrhy 2
32 wp8041.22.odt
ins ;kizek.ks ,dq.k 360 ins ljGlsosOnkjs Hkjrh dj.;kl ekU;rk
fnysyh vkgs-
ukckMZdMhy vkj-vkeyksjikoukFku lferhP;k f'kQkj'khuqlkj
cWadsus ;kiwohZp lknj dsysY;k 885 inkaP;k lq/kkjhr lsod
[email protected]`rhca/kkl lgdkj vk;qDr dk;kZy;kus fnukad 23-8-2021
jksthP;k i=kUo;s eatwjh fnysyh vkgs- fnukad 31-10-2021 v[ksj
cWadse/;s dk;Zjr ins 551 vlqu 364 ins fjDr vkgsr- ;kiSdh mDr
ueqn dsY;kizek.ks 360 ins ljGlsosOnkjs Hkjrh dj.;kl ekU;rk ns.;kr
vkyh vkgs-
4- panziwj ftYgk e/;orhZ lgdkjh cWadsP;k lapkyd eaMGkph eqnr
fn-5-10-2017 jksth laiq"Vkr vkyh vkgs- ;kckchr Jherh 'kkarkckbZ
cko.ks ;kauh ek-mPp U;k;ky;] eqacbZ [kaMihB ukxiwj ;sFks fjV ;kfpkd
[email protected] nk[ky d:u egkjk"Vª lgdkjh laLFkk vf/kfu;e
1960 e/;s 'kklukus fn-13-8-2013 jksth ¼egkjk"Vª [email protected], fn-
14-2-2013 iklwu ykxw½ dsysY;k lq/kkj.ksOnkjs lgdkjh laLFkkaP;k
lapkyd eMGkojhy vkfFkZd nqcZy izfrfu/khph rjrqn ¼dye 73 ch½
vf/kfu;ekrqu R;kpizek.ks cWadkaP;k mifo/khrqu dk<qu VkdY;kus O;fFkr
gksmu ;kfpdk nk[ky dsyh- lnj ;kfpdsoj ek- mPp U;k;ky;]
[kaMihB ukxiwj ;kauh fn-21-7-2017 jksthP;k vkns'kkOnkjs cWadsP;k
lapkyd eaMGkph fuoM.kqd izfdz;k lq: u dj.;kckcr vkns'khr dsys
vkgs o lnj LFkfxrh v|ki dk;e vkgs- ¼lkscr izr tksMyh vkgs-½ lnj
;kfpdk o vU; 13 ;kfpdsOnkjs vf/kfu;ekrhy lq/kkj.kk vkOgkuhr
dsY;kus lnj ;kfpdk ek-mPp U;k;ky;] eqacbZ dMs oxZ dj.;kr vkyh
vkgs o lnj ckc v|ki U;k;izfo"B vkgs- lnj ;kfpdsPkk Ø-
[email protected] vkgs-
5- njE;ku panziwj ftYgk e/;orhZ lgkdjh cWadsP;k lapkyd
eaMGkph eqnr laiysyh vlY;kus ;k cWadsP;k uksdjHkjrhl lgdkj
vk;qDrkauh fnysY;k ekU;rsl Lfkfxrh ns.;kph fouarh ek-Jh-lqjs'k
/kkuksjdj] yksdlHkk lnL; ;kauh rRdkyhu ek-ea=h ¼lgdkj½ ;kpsdMs
dsyh gksrh- R;kuq"kaxkus 'kklukus fnukad 12-05-2022 jksthP;k
vkns'kkUo;s panziwj ftYgk e/;orhZ lgdkj cWadsP;k uksdjHkjrhl LFkfxrh
fnyh-
rn~uarj v/;{k] panziwj ftYgk e/;orhZ lgdkjh cWad ;kaP;k
fnukad 11-11-2022 jksthP;k i=kUo;s] cWadsrhy deZpk&;kaph la[;k
deh vlY;kus dkedkt pkyfo.ks vMp.khps gksr vlwu uksdjHkjrh u
>kY;kl xzkgd lsosr O;R;; ;smu dkgh can iM.;kph 'kD;rk vlY;kps
uewn d:u uksdjHkjrhojhy LFkfxrh mBfo.;kph fouarh ek-ea=h
¼lgdkj½ ;kauk dsyh- R;kuqlkj cWadsps dkedkt O;ofLFkr pky.;klkBh
vkf.k xzkgd lsosr O;R;; u ;s.;kP;k mn~ns'kkus 'kklukus fnukad 23-
11-2022 jksthP;k i=kUo;s cWadsP;k uksdjHkjrhojhy LFkfxrh mBfoyh
vkgs-
33 wp8041.22.odt
6- l|fLFkrhr Jh= euksgj ikmudj o Jh- xtkuu ikrskMs ;kauh
R;kapk fnukad 29-11-2022 jksthP;k i=kUo;s] panziwj ftYgk e/;orhZ
lgdkjh cWadsP;k lapkyd eaMGkph eqnr laiysyh vlwu lnj lapkyd
eaMG gs dkGthokgw lapkyd eaMG vkgs- R;keqGs ;k lapkyd eaMGkyk
uksdjHkjrh lkj[ks eksBs vkf.k egRokps fu.kZ; ?ks.;kps vf/kdkj
ulY;kps uewn d:u 'kklukus fnukad 23-11-2022 jksthP;k
vkns'kkUo;s mBfoysyh LFkfxrh ;ksX; ulY;kus lnj uksdjHkjrhl iqUgk
LFkfxrh ns.;kph fouarh dsysyh vkgs-
7- izdj.kh uewn dj.;kr ;srs dh] panziwj ftYgk e/;orhZ
lgdkjh cWadsP;k lapkyd eaMGkph eqnr laiq"Vkr vkysyh vkgs] gh
ckc [kjh vlyh rjh ek- mPp U;k;ky;kP;k vkns'kkuqlkjp lnj
cWadsP;k lapkyd eaMGkP;k fuoM.kwdhl LFkfxrh ns.;kr vkysyh vlwu
v|ki;Zar lnj LFkfxrh dk;e vkgs- mijksDr oLrqfLFkrh fopkjkr ?ksrk]
panziwj ftYgk e/;oRkhZ lgdkjh cWadsP;k Hkjrhl LFkfxrh ns.ks mfpr
gksbZy fdaok dls ;kckcr d`i;k vkns'k Ogkosr-
(jtsoj) dk-v- ¼Jh- dkBksGs½
fo-dk-v-o l-fu-¼l-la½¼Jh- okMsdj½
(nkS&;koj) v-eq-l-¼lgdkj o i.ku½¼Jh- vuwi dqekj½
ek-ea=h ¼lgdkj½
ek-eq[;ea=h
v-eq-l- ¼l-o-i½"
53. The first para has demolished the submission that the matter
was placed before the Committee and it was the Committee's decision to
grant stay. The note-sheet itself begins with reference to the fact that on
the complaints of respondent No. 5 Mr. Manohar Pahunkar and
respondent No. 6 Mr. Gajanan Patode, the Chief Minister has granted
stay with direction to prepare a report. Thus, before acting on the note-
sheet, the Chief Minister had already granted a stay to the Minister
order, which is the impugned order separately passed on the complaint
(page 80). Therefore, there is no substance in the submission that the
34 wp8041.22.odt
Committee consisting of the Chief Minister and the concerned Minister
has considered the matter and thereafter granted stay. As a matter of
fact, the Chief Minister had already granted stay by passing the
impugned order on the complaint dated 29.11.2022 filed by respondent
No. 5 Mr. Manohar Pahunkar and respondent No. 6 Mr. Gajanan Patode.
Thus, the position is clear that stay was not granted by the concerned
Minister, but it was an act of the Chief Minister alone.
54. Moreover, the note-sheet reveals that it was merely signed by
the rest, and the Chief Minister has only remarked to grant stay which
also needs consideration. The said remark has no bearing as in first para
of the note-sheet, it is stated that the Chief Minister has already granted
stay. Obviously, the said note-sheet was prepared as per direction of the
Chief Minister subsequent to grant of stay and thus, there can be no
ratification by the subsequent remarks. The note-sheet indicates that the
file has been moved from the Authorities of which two were absent,
whilst two have only singed. When the note-sheet came to the Chief
Minister, he remarked thereon to grant stay. Therefore, in any
eventuality, it cannot be said that it was a joint decision to grant stay.
Hence, we do not found any force in the submission, which is nothing
but an attempt to shield the order of the Chief Minister.
55. Mr. Khapre, relied on the decision of the Supreme Court in
case of Lalaram and others Vs. Jaipur Development Authority and
35 wp8041.22.odt
another with connected matters, (2016) 11 SCC 31 to make two fold
submission that minor irregularities will not make the action illegal, and
that, the Chief Minister has residuary powers to pass orders in any case.
In this regard, he took us through para 61, 67, 73, 105 of the decision.
To understand the submission, we have gone through the decision
carefully, but are unable to find how it supports the contention that the
order of the Chief Minister is a mere irregularity. In-fact, it was the basic
contention of petitioner that the Chief Minister has no power to pass
orders when the business of co-operation department was allocated to
the concerned Minister. No doubt, mere non-compliance would not
render the executive action/decision invalid, if otherwise validly taken
as per the terms of Rules of Business, however the action must be in
accordance with the Rules of Business.
56. The second submission about residuary powers of the Chief
Minister is based upon the Rajasthan Rules of Business, where the
residuary powers are vested with the Chief Minister in terms of the Rule
31(2)(xix). Mr. Khapre is unable to point any Rule of Business or
Instruction framed by the Governor of Maharashtra in terms of Article
166(3) of the Constitution of India which vests such residuary powers
with the Chief Minister. Moreover, the subject at hand cannot be said to
be a case involving the policy or matter of urgent public importance,
36 wp8041.22.odt
therefore being distinct on facts, the said decision would not assist
respondents in any manner.
57. Last, reliance of Mr. Khapre is on the decision of the Supreme
Court in case of Jayantbhai Manubhai Patel & ors. Vs. Arun Subodhbhai
Mehta & ors., AIR 1989 SC 1289 to contend that by virtue of Section 21
of the General Clauses Act, the power to pass the impugned order is an
implicit one. Section 21 of the General Clauses Act states that a power
to make an order, includes power to add, amend vary or rescind the
order. However basically the authority must be vested with initial power
to deal with the subject and only then does Section 21 of the General
Clauses Act, aid the passing of incidental orders. In the case at hand, the
initial power to pass orders on the subject assigned to the Co-operation
Ministry has not been demonstrated and therefore, Section 21 of the
General Clauses Act could not be made applicable to justify the
impugned order.
58. Mr. Khapre, learned senior counsel would submit that the
impugned order of stay was an interim order and the Chief Minister is
yet to hear and decide the proceeding. The petitioners would get an
opportunity to put up their case before the Chief Minister and therefore,
the order being of interim nature, does not call for interference. In
response, it is submitted that since the Chief Minister has no authority to
pass interim orders or to stall the order of the concerned Minister, the
37 wp8041.22.odt
proceeding itself is illegal, without jurisdiction and therefore, the
petitioners are not required to submit to the said authority.
59. On the issue of maintainability of the writ petition, learned
counsel Mr. Manohar relied on the decision of the Supreme Court in
case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai &
ors. (1998) 8 SCC 1. In the said decision, it has been observed that
existence of alternate remedy would not operate as a bar in at least
three contingencies: (i) where the writ petition seeks enforcement of any
of the fundamental rights; (ii) where there is violation of principles of
natural justice; or (iii) where the order or the proceedings are wholly
without jurisdiction or the vires of an Act is challenged. Even in the case
at hand, it is not a plea of the other side that alternate remedy is
available. The petitioner very much claims violation of principles of
natural justice and that the order impugned is wholly without
jurisdiction.
60. Admittedly, the Chief Minister was not the head of the Co-
operation Department, but the said department was assigned to a
separate Minister. There is no authority/power vested in the Chief
Minister as per Rules of Business and Instructions to have supervisory
powers over the decision taken by the concerned Minister. Nor do the
Rules indicate that the Minister is subordinate to the Chief Minister as
38 wp8041.22.odt
regards independent functioning of a department assigned to him by the
Rules. Obviously, subordination must be express either by a Statute or
the Rules of Business. Once the powers are distributed by the Rules of
Business and Instructions, there must be an express provision
authorizing the Chief Minister to indulge in the matter assigned to the
particular Ministry. Since a Minister-in-charge of a department is
supposed to function for the concerned department, he is responsible for
the affairs thereof and his orders would assume the character of an order
passed by the State Government. There is no provision in the Business
Rules to go beyond allocation of work. Rule 15 of the Business Rules
specifies the classes of cases which shall be submitted to the Chief
Minister before issuance of orders, but the concerned subject does not
fall within specified subjects contained therein. No doubt the order of
granting permission for recruitment is of administrative nature which
can be reviewed, but only by the In-charge-Minister. The intervention of
the Chief Minister is not authorized under the Business Rules and the
Instructions issued thereunder. The Intervention of the Chief Minister is
wholly unwarranted and without the authority of law. The Chief
Minister has no independent power under the Business Rules and
Instructions to interfere into the subject which was allocated to the In-
charge-Minister.
39 wp8041.22.odt
61. In the result, we hold that the Chief Minister has no
independent power assigned under the Rules of Business and
Instructions issued thereunder to review or modify the decision taken by
the concerned In-charge-Minister, therefore, the impugned order of stay
granted by the Chief Minister would not stand on this legal touchstone.
In that view of the matter, the writ petition is allowed. Impugned order
of stay dated 29.11.2022 passed by the Chief Minister is hereby quashed
and set aside.
62. Rule is made absolute in terms of prayer clause (A) of the
petition. No costs.
(VALMIKI SA MENEZES, J.) (VINAY JOSHI, J.)
Gohane
Digitally
signed by
JITENDRA
JITENDRA BHARAT
BHARAT GOHANE
GOHANE Date:
2023.03.03
18:01:49
+0530
