Delhi High Court
V.P. Goel & Ors. vs Uoi & Ors. on 13 May, 2011
Author: Sanjiv Khanna
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) NO. 1559 OF 1997
Reserved on : 2nd January, 2011
% Date of Decision : 13th May, 2011
BHAGVAN SINGH GULERIA .... Petitioner
Through Mr. Pramod Ahuja, Advocate
VERSUS
UOI & ORS. .....Respondents
Through Mr. J P Sengh, Sr. Advocate with
Ms. Zubeda Begum and Mr.
Sumeet Batra, Advocates for
respondent Nos. 2 to 5-Rajya
Sabha.
AND
+ WRIT PETITION (CIVIL) NOs. 3069 OF 1992
Reserved on : 8th February, 2011
% Date of Decision : May, 2011
V.P. GOEL & ORS. .... Petitioners
Through None
VERSUS
UOI & ORS. .....Respondents
Through Mr. Maninder Acharya, Advocate
CORAM:
HON'BLE MR. JUSTICE DIPAK MISRA, THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not ? Yes.
3. Whether the judgment should be reported in the Digest ? Yes.
SANJIV KHANNA, J.:
WRIT PETITION (CIVIL) Nos. 3069/1992 & 1559/1997 Page 1 of 53
1. The aforesaid writ petitions were heard on different dates,
but as similar legal issues and questions arise for consideration,
they are being disposed of by this common judgment. The
factual aspects of the two cases have been separately
discussed and examined below.
2. The two main contentions raised in the writ petitions
pertain to interpretation of Article 98 of the Constitution and
whether or not Rajya Sabha Secretariat (Recruitment and
Conditions of Service) Rules, 1957 and in particular whether
Sub-Rule 2 to Rules 4 and 5 suffer from vires of excessive
delegation and accordingly whether or not the Rajya Sabha
(Method of Recruitment and Qualification for Appointment)
Order 1974 and other orders passed by the Chairman, Rajya
Sabha are void. Similarly, in the case of V P Goel the challenge
is made to Lok Sabha Secretariat (Recruitment and Conditions
of Service) Rules, 1955 and in particular challenge is made to
Rules 3, 8 and 9 on the ground of excessive delegation.
3. Article 98 of the Constitution reads as under :
98. Secretariat of Parliament.--(1) Each
House of Parliament shall have a
separate secretarial staff:
WRIT PETITION (CIVIL) Nos. 3069/1992 & 1559/1997 Page 2 of 53
Provided that nothing in this clause shall
be construed as preventing the creation
of posts common to both Houses of
Parliament.
(2) Parliament may by law regulate the
recruitment, and the conditions of service
of persons appointed, to the secretarial
staff of either House of Parliament.
(3) Until provision is made by Parliament
under clause (2), the President may, after
consultation with the Speaker of the
House of the People or the Chairman of
the Council of States, as the case may
be, make rules regulating the recruitment,
and the conditions of service of persons
appointed, to the secretarial staff of the
House of the People or the Council of
States, and any rules so made shall have
effect subject to the provisions of any law
made under the said clause.
4. Article 98 of the Constitution provides that there shall be a
Secretariat staff attached to each House of Parliament to assist
the Speaker of the Lok Sabha and the Chairman of Rajya
Sabha who are the heads of the two houses of the Parliament.
Under the proviso, posts common for both Houses of
Parliament are permissible. Article 98(2) postulates that the
Parliament by enacting law can regulate recruitment and
conditions of service of the persons appointed to the Secretariat
staff of each House of Parliament. Till any legislation is enacted
by the Parliament, under Clause 3 of Article 98 the President
WRIT PETITION (CIVIL) Nos. 3069/1992 & 1559/1997 Page 3 of 53
may after consultation with Speaker of the House of the People
or the Chairman of the House of Council of States, as the case
may be, can make rules regulating the recruitment and
conditions of service of persons appointed to the Secretariat of
the two Houses. Any Rule so made shall have the effect,
subject to the provisions of any enactment made under Clause
2 of Article 98 by the Parliament. Article 98(2) does not
mandate that the Parliament must enact legislation within a time
frame. Whether, when and what legislation should be enacted
is left to the Parliament. Rules made under Article 98(3) cannot
be declared as invalid as the Parliament has not legislated.
5. The object and purpose of Article 98 is to ensure that the
officers working in the Secretariat enjoy independence and
work without interference, or pressure from any quarter except
the Constitutional mandate and sanction. Article 98 of the
Constitution has been enacted with the object that the
Secretariat attached to the Central Legislature should have
staff, which is not under the control and influence of the
Executive. The effective control should be with the heads of the
Lok Sabha and Rajya Sabha.
WRIT PETITION (CIVIL) Nos. 3069/1992 & 1559/1997 Page 4 of 53
6. This is clear and apparent if we examine the specific
clauses of the Rules, which are subject matter of challenge.
The said clauses read as under :
LOK SABHA SECRETARIAT
(RECRUITMENT AND CONDITIONS OF SERVICE)
RULES, 1955
1. xxxxx
2. xxxxx
3. Strength and Composition of the Secretariat.--
(1) There shall be in the Secretariat:
(a) such number of permanent posts as are
specified in the First
Schedule; and
(b) such number of temporary posts of the
categories specified in the Second Schedule as
the Speaker may by order from time to time
sanction:
Provided that no order sanctioning the creation of
a temporary post in Group A carrying pay scales
exceeding Rs.2,750/- p.m. shall be issued by the
Speaker except after consultation with the
Ministry of Finance.
(2) The Speaker may, from time to time, amend
the First Schedule by increasing or reducing the
number of posts specified therein or by adding
thereto any new category of post or posts:
Provided that when such amendment relates to a
post in Group 'A' carrying pay scales exceeding
Rs. 2000/- p.m., no order sanctioning the
amendment shall be made by the Speaker except
after consultation with the Ministry of Finance.
4. Method of Recruitment.--(1) Recruitment to a
post or class of posts may be made by any one of
the following methods, namely:--
(a) by promotion of a person employed in the
Secretariat;
WRIT PETITION (CIVIL) Nos. 3069/1992 & 1559/1997 Page 5 of 53
(b) by permanent transfer or deputation of a
person serving outside the Secretariat in
connection with the affairs of the Union or of a
State;
(c) by direct recruitment;
(2) The Speaker may, by order, from time to time:
(a) specify the method or methods by which a
post or class of posts may be filled;
(b) determine the proportion of vacancies to be
filled by each method; and
(c) in case of recruitment by promotion, specify
the class of officers who, and the conditions
subject to which they, shall be eligible for such
promotion.
5. Qualifications for recruitment.--The
qualifications for recruitment to any post or class
of posts shall be such as the Speaker may, from
time to time, by general or special order specify.
6. Appointing authority.--All appointments to
posts shall be made by the Speaker:
Provided that the Speaker may, by general or
special order, delegate to the Secretary or any
other officer of the Secretariat his power to make
appointments to any post or class of posts
specified in such order, being posts other than
posts in Group A.
7. xxxx
8. Pay, Leave, Pension and Age of Compulsory
Retirement.--Subject to the provisions of Rule 11
--
(a) the pay or scale of pay attached to each of the
posts in the Secretariat shall be as set out against
it in the Second Schedule;
(b) the rules relating to the grant of leave and
pension to officers and the age at which they shall
be compulsorily retired from service shall be as
set out in the Third and Fourth Schedules;
Provided that the holder of the post of Secretary
at the commencement of these rules shall be
governed in the matter of pay, leave, pension and
age of retirement by the provisions specified in
the Fifth Schedule.
(c) the Speaker may, from time to time, by general
or special order, after consultation with the
Ministry of Finance, amend any provision in the
Second, Third and Fourth Schedules.
9. Other conditions of service.--In respect of all
other matters regulating the conditions of service
of officers for which no provision or insufficient
provision has been made in these rules, officers
shall be governed by such rules as are applicable
to the officers of the corresponding rank in the
Central Secretariat, subject to such modifications,
variations or exceptions, if any, in such rules, as
the Speaker may, after consultation with the
Ministry of Finance, by order, from time to time
specify.
Explanation.-- For the purposes of this rule, the
Speaker may, after consultation with the Ministry
of Finance, by order, specify the posts in the
Central Secretariat which shall correspond to the
posts in the Secretariat.
THE RAJYA SABHA SECRETARIAT
(RECRUITMENT AND CONDITIONS OF
SERVICE) RULES, 1957
1. xxx
2. xxx
3. Strength and composition of the
Secretariat --(1) There shall be in the
Secretariat: --
(a) Such number of permanent posts as are
specified in the First Schedule; and
(b) Such number of temporary posts of the
categories specified in the Second Schedule as
the Chairman may, from time to time, by order
sanction:
Provided that no order sanctioning the
creation of a temporary post in Class I above the
rank of Under Secretary shall be issued by the
Chairman except after consultation with the
Ministry of Finance.
(2) The Chairman may, from time to time,
amend the First Schedule by increasing or
reducing the number of posts specified therein or
by adding thereto any new category of post or
posts :
Provided that when such amendment
relates to a post in Class I or Class II, no order
sanctioning the amendment shall be made by the
Chairman except after consultation with the
Ministry of Finance.
PART II --RECRUITMENT
4. Method of recruitment. - (1) Recruitment
to a post or class of posts may be made by one or
more of the following methods namely: --
(a) by promotion of a person employed in
the Secretariat;
(b) by permanent transfer or deputation of a
person serving outside the Secretariat in
connection with the affairs of the Union or of a
State;
(c) by direct recruitment.
(2) The Chairman may, from time to time,
by general or special order -
(a) Specify the method or methods by which
recruitment to a post or class of posts shall be
made;
(b) in case of recruitment by more than one
such method, determine the proportion of
vacancies to the filled by each method; and
(c) in case of direct recruitment, specify the
manner in which such recruitment shall be made.
5. Qualifications for appointment - The
qualifications required for appointment to the
various categories of posts by departmental
promotion or otherwise shall be such as the
Chairman may, from time to time, by general or
special order, specify.
6. Appointing Authority - All appointments to
the posts shall be made by the Chairman:
Provided that the Chairman may, by general or
special order, delegate to the Secretary or any
other officer of the Secretariat, his power to make
appointments to any post or class of posts
specified in such order other than posts in Class I
7. xxxxxx
PART III --PAY, LEAVE PENSION AND
CERTAIN OTHER CONDITIONS OF SERVICE
8. Pay, Leave, Pension and Age of Compulsory
Retirement -- Subject to the provisions of rules 11
and 12, --
(a) the pay or scale of pay attached to each of
the posts specified in column 1 of the Second
Schedule shall be as set out against it in column 3
of that Schedule :
Provided that in the case of a pre-1931 entrant,
who has not elected the pay or the scale of pay so
set out, the pay or scale of pay attached to the
post held by him shall be the pay or scale of pay
as set out against it in column 2 of that Schedule;
(b) the rules relating to the grant of leave and
pension to officers and the age at which they shall
be required to retire from service shall be as set
out in the Third and Fourth Schedule;
(c) notwithstanding anything in clause (a) or
clause (b) the holder of the post of Secretary at
the time these rules come into force shall be
governed in the matter of pay, leave, pension and
age of retirement, by the provisions specified in
the Fifth Schedule;
(d) the Chairman may, from time to time, by
general or special order, after consultation with
the Ministry of Finance, amend any provision in
the Second, Third and Fourth Schedules.
9. xxxxx
10. Other Conditions of Service - In respect of
all other matters regulating the conditions of
service of officers for which no provision or
insufficient provision has been made in these
rules, officers shall be governed by such rules as
are applicable to the officers holding
corresponding posts in the Central Secretariat,
subject to such modifications, variations or
exceptions, if any, in such rules, as the Chairman
may, after consultation with the Ministry of
Finance, from time to time, by order specify.
Explanation.--For the purposes of this rule, the
posts specified in column 1 of the Sixth Schedule
shall correspond to the posts in the Central
Secretariat specified in the corresponding entries
in column 2 of that Schedule.
7. There is no doubt and it is not questioned that the two
Rules have been made by the President in consultation with the
Speaker and the Chairman respectively. Thus the aforesaid
Rules have been framed as per Article 98(3) of the Constitution.
Parliament, it is admitted, has not enacted any law. In these
circumstances Article 98(3) applies and the power to make
Rules under the said provision is available and has been
enforced.
8. The second question/issue raised is whether these Rules
made under Article 98(3), which authorize and permit the
Speaker and the Chairman to issue order(s) regulating/fixing
the eligibility norms, terms of service, pay scales etc. are bad
and suffer from vires of excessive delegation contrary to Article
98(3) of the Constitution. The petitioners have laid considerable
emphasis on the words ―President may, after consultation with
the Speaker of the House of People or the Chairman of the
Council of States‖ used in Article 98(3) and have emphasized
that the said language postulates that there cannot be any
delegation of powers to the Speaker or the Chairman and it is
actually the President who makes the Rules relating to
recruitment and conditions of service and he is only required to
consult the Speaker of the Lok Sabha and the Chairman of the
Rajya Sabha, as the case may be.
9. The argument, though attractive, has to be rejected for a
number of reasons. The question whether a particular
legislation suffers from excessive delegation has to be decided
by having regard to the subject-matter, the scheme, the
provisions of statute including the preamble and the facts and
circumstances in the background of which the statute was
enacted (see St. Johns Teacher Training Institute Vs.
Regional Director, NCTE, (2003) 3 SCC 321 and Kishan
Prakash Sharma Vs. Union of India (2001) 5 SCC 212). The
aforesaid ratio and principles will equally apply while
interpreting Article 98(3). It is also well settled that in
considering vires of a subordinated legislation one should start
with the presumption that it is intra vires and if it is open to two
constructions, one of which would make it valid and the other
which would make it invalid, the courts must adopt that
construction that makes it valid and in some cases legislation
can be read down to avoid the delegated legislation being
declared ultra vires [see St. John Teacher Training Institute
(supra)].
10. Legislative delegation in framing rules and regulations
saves time and is intended to give flexibility to deal with
variations. It permits and ensures that the Executive or the
authority can utilize its experience and adopt and modify rules
and regulations as per needs and requirements. Needs of the
modern day Secretariat attached to the legislature are varied
and complex. Delegation ensures that Chairman or the Speaker
exercise necessary control and supervision of the said
secretariat. It may not be possible to foresee every
administrative difficulty that may arise after the rules have come
into operation. The Chairman, Rajya Sabha (i.e. the Vice
President of India) and the Speaker of the Lok Sabha are
constitutional authorities and heads of the two houses. The
Chairman and the Speaker of the Parliament are posts of
responsibility, prestige and honour. They rank No.2 and No.6
respectively in the order of precedence. They are also the
Heads of the two Secretariats and are directly concerned with
the working of their respective two Secretariats. For effective
and proper working of the Secretariats, they have to be given
the right and power to decide and regulate the recruitment
and conditions of service of the secretarial service. This
can require changes and amendments from time to time
depending upon the needs and requirements at a particular
time. It is for this reason that the two Rules framed under Article
98(3) of the Constitution give sufficient right and authority to the
Speaker and the Chairman to decide about the creation and
number of posts in the Secretariat, qualifications, eligibility
norms, method of recruitment, pay scales etc. of the secretarial
services. This ensures that the Speaker and the Chairman have
sufficient latitude and flexibility in the management and affairs
of the two Secretariats.
11. In Accountant-General vs. S. Doraiswamy, (1981) 4
SCC 93, the Supreme Court was considering validity of the
power of the Comptroller and Auditor General to pass orders
and instructions on service matters and the contention raised
was that the authority has been granted arbitrary powers to
pass orders and instructions. The President under Article
148(5), subject to provisions of the Constitution and law
enacted by the Parliament, can make rules regarding service
conditions in consultation with the Comptroller and Auditor
General. Validity of the power and authority of the Comptroller
and Auditor General under the rules as framed was challenged.
The said contention was rejected holding as under:-
―10. In the connected Writ Petition 357
of 1979 there are 15 petitioners. The first ten
passed the Subordinate Accounts Service
Examination and were promoted to the Service
after 1956 and before the enactment of the
Rules of 1974. They will be governed by the
legal position enunciated in the aforesaid
appeals. The eleventh, twelfth and thirteenth
petitioners passed the examination immediately
before the enactment of the Rules of 1974 but
were promoted after the Rules were enacted.
The remaining petitioners appeared at the
examination and were promoted after the
enactment of the Rules. In the case of the last
two categories the Rules of 1974 will apply.
Having regard to the provision determining the
fixation of seniority under the Rules of 1974
and the position obtaining thereafter, none of
the petitioners can claim the benefit of
weightage on the basis of length of service. But
these petitioners rely on the second of the two
contentions concerning the validity of the Rules
of 1974. They assail specifically the validity of
Rule 7(2) which provides for fixation of
seniority. The argument is that the fixation of
seniority has been made by Rule 7(2) to
depend on the order in which appointments to
the service are made under Rule 6, and that, it
is pointed out, depends on an arbitrary power
conferred on the Comptroller and Auditor-
General to pass orders and instructions. We
see no force in the contention. The Comptroller
and Auditor-General is a high ranking
constitutional authority, and can be expected to
act according to the needs of the service and
without arbitrariness. He is the constitutional
head of one of the most important departments
of the State, and is expected to know what the
department requires and how best to fulfil those
requirements. We are unable to hold that the
power conferred on him under the Rules
violates the principle against excessive
delegation. During the pendency of those
appeals the President enacted the Indian Audit
and Accounts Department (Subordinate
Accounts Service & Subordinate Railway Audit
Service) Service Rules, 1974 (referred to
hereinafter as ―the Rules of 1974‖).
12. It may be noticed here that Article 309 of the Constitution
is similar, though not identical to Clause 3 of Article 98. Article
309 including the proviso read as under :
309. Recruitment and conditions of service
of persons serving the Union or a State.--
Subject to the provisions of this Constitution,
Acts of the appropriate Legislature may
regulate the recruitment, and conditions of
service of persons appointed, to public
services and posts in connection with the
affairs of the Union or of any State:
Provided that it shall be competent for the
President or such person as he may direct in
the case of services and posts in connection
with the affairs of the Union, and for the
Governor of a State or such person as he
may direct in the case of services and posts in
connection with the affairs of the State, to
make rules regulating the recruitment, and the
conditions of service of persons appointed, to
such services and posts until provision in that
behalf is made by or under an Act of the
appropriate Legislature under this article, and
any rules so made shall have effect subject to
the provisions of any such Act.
13. Article 309 postulates that the appropriate legislature can
regulate recruitment and conditions of service of persons
appointed to public services and posts in the Union or the State.
The proviso however, stipulates that the President or the
Governor can regulate recruitment and conditions of services till
an appropriate legislation is made under the said Article and the
rules made by the President or the Governor shall have effect
subject to the provisions of the Act which may be enacted by
the legislature. Thus, the proviso gives rule making power to
the President or the Governor and the said rules have their
effect subject to a statute being enacted by the legislature.
Therefore, the proviso empowers the Executive to make rules
which have force of law until the appropriate legislature enacts
on the subject relating to recruitment and conditions of service
of persons appointed to public service or posts in the Union or
the State. In view of Section 21 of the General Clauses Act the
President or the Governor are competent to amend or vary the
rules made by him so long as the appropriate legislature does
not enact a statute. The rules made under proviso to Article
309 have a statutory character. (See Raj Kumar Vs. Shakti
Raj (1997) 9 SCC 527 ). It is now well settled that reference to
the President and Governor in Article 309 and 311(2)(c) does
not refer to the President or the Governor personally but as the
Constitutional Heads of the Union or the State. Thus, the rules
are made under the proviso to Article 309 and action can be
taken under Article 311(2)(c) on the advice of the Council of
Ministers and through subordinate officers according to the
rules relating to recruitment and conditions of service or the
rules made under Article 309. (See Constitutional Bench
decision of 7 judges in Shamsher Singh Vs. State of Punjab
1974 2 SCC 831 and UOI Vs. Tulsiram Patel AIR 1985 SC
1416). It is also well settled that the power to appoint or dismiss
an officer is an administrative power and can be delegated but
subject to Clause 1 of Article 311. We do not see any reason
why these decisions and ratio should not be applied and
considered as applicable when we decide the second question
i.e. whether or not there is excessive delegation.
14. The question of excessive delegation under Articles 309
and 310 of the Constitution was examined by this Court in N.C.
Singhal (Dr.) Vs. Union of India, ILR (1973) 1 Del 1081. The
charge of excessive delegation was rejected, inter alia, holding
as under:-
―The subject on discretion falls into two parts,
namely, (1) conferment of discretion on
Government or administrative authorities, and (2)
the actual exercise of such discretion by them.
When Legislature confers discretion on the
Executive, the legislation may be attacked in either
of the two ways. It may be said to amount to an
excessive delegation of an essentially legislative
power by the Legislature to the Executive. This
would be unconstitutional because the essence of
the legislative function, namely, to lay down the
legislative policy' cannot be delegated by the
Legislature to the Executive. Alternatively, such
legislation can be attacked on the ground that by
conferring unguided discretion on the Executive, it
enables the Executive to practice discrimination
and unequal treatment. It appears to me that none
of these objections can arise in the present case.
Under Article 310 of the Constitution, the Central
Government employees hold office during the
pleasure of the President. Under the proviso to
Article 309, the President is enabled to frame rules
regulating their conditions of service. Even in the
absence of such rules, administrative instructions
laid down by the Government can govern the
conditions of service of the Central Government
employees. It is to be noted that neither in Article
310 nor in Article 309 any guidelines are laid down
for the exercise of the powers of the President in
relation to the employees of the Central
Government. If the Constitution itself gives
unfettered powers to the President to deal with
such employees, no question of excessive
delegation of either legislative or executive powers
can arise. A provision of the Constitution cannot
be challenged on such a ground. If Articles 309
and 310 do not contain such guidelines, the rules
framed under the proviso to Article 309 which are
intended to carry out the purposes of Articles 309
and 310 are not also compulsorily required to
contain such guidelines. For, the object of these
Constitutional provisions as also the rules or
administrative instructions framed under them is
the efficiency of Government service. It is for the
Government to decide which is the best way to
promote such efficiency.‖
15. It may be appropriate here to refer to Article 312 of the
Constitution which for the sake of convenience is reproduced
below :
312. All-India services.--(1)
Notwithstanding anything in [Chapter VI of
Part VI or Part XI], if the Council of States
has declared by resolution supported by
not less than two-thirds of the members
present and voting that it is necessary or
expedient in the national interest so to do,
Parliament may by law provide for the
creation of one or more all-India services
[(including an all-India judicial service)]
common to the Union and the States, and,
subject to the other provisions of this
Chapter, regulate the recruitment, and the
conditions of service of persons appointed,
to any such service.
(2) The services known at the
commencement of this Constitution as the
Indian Administrative Service and the
Indian Police Service shall be deemed to
be services created by Parliament under
this article.
(3) The all-India judicial service referred to
in clause (1) shall not include any post
inferior to that of a district judge as defined
in Article 236.
(4) The law providing for the creation of the
all-India judicial service aforesaid may
contain such provisions for the amendment
of Chapter VI of Part VI as may be
necessary for giving effect to the provisions
of that law and no such law shall be
deemed to be an amendment of this
Constitution for the purposes of Article 368.
16. In D S Garewal vs. State of Punjab, AIR 1959 SC 512,
contention was raised that power under Article 312(1) cannot
be delegated and therefore the Rules made by the Executive
under All India Services Act, 1951 were bad for excessive
delegation. All India Services Act, 1951 consists of only 5
Sections including Section 2A which defines ―Other All India
Services‖. Section 3 of the Act permits and states that the
Central Government, after consultation with the Government of
the State concerned, can make rules for regulating recruitment
and conditions of service of persons appointed to the All-India
Services. It is in exercise of the power under Section 3 of the
said Act that rules and regulations for All- India Services have
been framed. These are delegated legislations. While
examining the provisions of Article 312 and vires of Section 3 of
All-India Services Act, 1951, the Supreme Court in D.S.
Garewal (supra) examined the question of excessive
delegation and rejected the same observing:
―7. It is contended that Article 312 lays down a
mandate on Parliament to make the law itself
regulating the recruitment and the conditions of
service of all-India services, and therefore, it
was not open to Parliament to delegate any part
of the work relating to such regulation to the
Central Government by framing Rules for the
purpose. Now, it is well settled that it is
competent for the legislature to delegate to
other authorities the power to frame rules to
carry out the purposes of the law made by it. It
was so held by the majority of Judges in Delhi
Laws Act, 1912 Re. Delhi Laws case was
further examined in Rajnarain Singh v.
Chairman, Patna Administration Committee,
and the delegation was held to go to the extent
of authorising an executive authority to modify
the law made but not in any essential feature. It
was also observed that what constitutes
essential feature cannot be enunciated in
general terms It is, therefore, clear that
delegation of legislative functions can be made
to executive authorities within certain limits. In
this case Section 3 of the Act lays down that the
Central Government may, after consultation
with the Governments of the States concerned,
make rules for the regulation of recruitment and
conditions of service of persons appointed to an
all-India service. It also lays down that all rules
made under this section shall be laid for not
less than fourteen days before Parliament as
soon as possible after they are made, and shall
be subject to such modifications, whether by
way of repeal or amendment, as Parliament
may make on a motion made during the
session in which they are so laid. Mr Chatterjee
contends that no delegation whatsoever was
possible under Article 312 and that the
Constitution required that Parliament should
itself frame the entire law relating to the
regulation of recruitment and the conditions of
service of all-India services. We have,
therefore, to see whether there is anything in
the words of Article 312 which takes away the
usual power of delegation, which ordinarily
resides in the legislature. Stress in this
connection has been laid on the words
―Parliament may by law provide‖ appearing in
Article 312. It is urged that these words should
be read to mean that there is no scope for
delegation in a law made under Article 312. Our
attention in this connection was drawn to words
used in Article 245, which are ―Parliament may
make laws‖. It is said that the words used in
Article 312 are in a special form, which import
that Parliament must provide by law for
regulation of recruitment and the conditions of
service and cannot delegate any part of it to
other authorities. Reference was also made to
the words used in Article 138(1), (namely
Parliament may by law confer); Article 138(2),
(namely, Parliament may by law provide);
Article 139, (namely, Parliament may by law
confer); and Article 148(3), (namely, as may be
determined by Parliament by law). In contrast to
these Articles, our attention was drawn to the
words of Article 173(c), (namely, by or under
any law made by Parliament), and Article
293(2), (namely, by or under any law made by
Parliament). It is urged that when the
Constitution uses the words ―may by law
confer‖ or ―may by law provide‖, no delegation
whatsoever is possible. We are of opinion that
these words do not necessarily exclude
delegation and it will have to be seen in each
case how far the intention of the Constitution
was that the entire provision should be made by
law without recourse to any rules framed under
the power of delegation. Let us, therefore,
examine Article 312 from this angle, and see if
the intention of the Constitution was that
regulation of recruitment and conditions of
service to an all-India service should only be by
law and there should be no delegation of any
power to frame rules. Regulation of recruitment
and conditions of service requires numerous
and varied rules, which may have to be
changed from time to time as the exigencies of
public service require. This could not be
unknown to the Constitution makers and it is
not possible to hold that the intention of the
Constitution was that these numerous and
varied rules should be framed by Parliament
itself and that any amendment of these rules
which may be required to meet the difficulties of
day-to-day administration should also be made
by Parliament only with all the attending delay
which passing of legislation entails. We are,
therefore, of opinion that in the circumstances
of Article 312 it could not have been the
intention of the Constitution that the numerous
and varied provisions that have to be made in
order to regulate the recruitment and the
conditions of service of all-India services should
all be enacted as statute law and nothing
should be delegated to the executive
authorities. In the circumstances we are of
opinion that the words used in Article 312 in the
context in which they have been used do not
exclude the delegation of power to frame rules
for regulation of recruitment and the conditions
of service of all-India services. We cannot read
Article 312 as laying down a mandate
prohibiting Parliament from delegating authority
to the Central Government to frame rules for
the recruitment and the conditions of service of
all-India services. We, therefore, reject this
contention.
8. The argument in this connection is that even
if delegation is possible, there was excessive
delegation in this case, and, therefore, the Act
should be struck down. The Act is a short Act of
four sections. The first section deals with the
short title, the second section defines the
expression ―all-India Service‖, and the third
section gives power to the Central Government
to frame rules for regulation of recruitment and
the conditions of service after consultation with
the Governments of the States concerned, and
lays down that all rules so framed shall be laid
before Parliament and shall be subject to such
modifications as Parliament may make. Section
4 which is important is in these terms--
―All rules in force immediately before the
commencement of this Act and applicable to an
all-India service shall continue to be in force
and shall be deemed to be rules made under
this Act.‖
It is urged that this Act lays down no legislative
policy or standard at all and everything is left to
the Central Government. In this connection
reference was made to the following
observations of Mukherjea, J. (as he was then)
in Delhi Laws Act, 1912 Re2 at p. 982:
―The essential legislative function consists in
the determination or choosing of the legislative
policy and of formally enacting that policy into a
binding rule of conduct. It is open to the
legislature to formulate the policy as broadly
and with as little or as much details as it thinks
proper and it may delegate the rest of the
legislative work to a sub-ordinate authority who
will work out the details within the framework of
that policy. ‗So long as a policy is laid down and
a standard established by statute no
constitutional delegation of legislative power is
involved in leaving to selected instrumentalities
the making of subordinate rules within
prescribed limits and the determination of facts
to which the legislation is to apply'.‖
It is said that in this case Parliament did not
even exercise the essential legislative function
inasmuch as it did not determine or choose the
legislative policy and formally enact that policy
into a binding rule of conduct. Apparently, if one
looks at the Act, there seems to be some force
in this contention. But a close reading of
Section 4 of the Act and its scope, purpose and
effect will show that this is not a case where the
legislature has failed to lay down the legislative
policy and formally to enact that policy into a
binding rule of conduct. What does Section 4 in
fact provide? Undoubtedly there were rules in
force immediately before the commencement of
the Act which governed the two all-India
services covered by it and the legislature
adopted those rules and said in Section 4 that
they shall continue to be in force. Thus though
Section 4 appears on the face of it as one short
section of four lines, it is in effect a statutory
provision adopting all the rules which were in
force at the commencement of the Act,
governing the recruitment and the conditions of
service of the two all-India services. The section
certainly lays down that the rules already in
force shall be taken to be rules under the Act;
but that was necessary in order to enable the
Central Government under Section 3 to add to,
alter, vary and amend those rules. There is no
doubt, however, that Section 4 did lay down
that the existing rules will govern the two all-
India services in the matter of regulation of
recruitment and conditions of service, and
insofar as it did so it determined the legislative
policy and set up a standard for the Central
Government to follow and formally enacted it
into a binding rule of conduct. Further, by
Section 3 the Central Government was given
the power to frame rules in future which may
have the effect of adding to, altering, varying or
amending the rules accepted under Section 4
as binding. Seeing that the rules would govern
the all-India services common to the Central
Government and the State Government
provision was made by Section 3 that rules
should be framed only after consulting the State
Governments. At the same time Parliament
took care to see that these rules were laid on
the table of Parliament for fourteen days before
they were to come into force and they were
subject to modification, whether by way of
repeal or amendment on a motion made by
Parliament during the session in which they are
so laid. This makes it perfectly clear that
Parliament has in no way abdicated its
authority, but is keeping strict vigilance and
control over its delegate. Therefore, reading
Section 4 along with Section 3(2) of the Act it
cannot be said in the special circumstances of
this case that there was excessive delegation to
the Central Government by Section 3(1). We
are, therefore, of opinion that the Act cannot be
struck down on the ground of excessive
delegation.‖
17. The aforesaid reasoning has been reiterated as applicable
to service conditions when the rules and regulations framed by
the delegatee were challenged on the ground of excessive
delegation in A.K. Kraipak v. Union of India, (1969) 2 SCC
262, wherein it has been observed:-
―11. It was contended before us that
Section 3 of the All-India Services Act,
Rule 4 of the rules framed thereunder and
Regulation 5 of the Indian Forest Service
(Initial Recruitment) Regulations, 1966, are
void as those provisions confer unguided,
uncontrolled and uncanalised power on the
concerned delegatees. So far as the vires
of Sections 3 of the Indian Administrative
Act is concerned, the question is no more
res integra. It is concluded by the decision
of this Court in D.S. Garewal v. State of
Punjab We have not thought it necessary
to go into the question of the vires of Rule
4 and Regulation 5 as we have come to the
conclusion that the impugned selections
must be struck down for the reasons to be
presently stated.‖
18. It is not possible to accept the contention that the
expression ‗President may, after consultation with the Speaker
of the House of People or the Chairman of the Council of
States' negates the principle of delegation. The word
‗consultation' used in Article 98(3) cannot be given the same
connotation and meaning as used in Article 124, Article 217 and
Article 233 of the Constitution. The word ‗consultation' has to
be interpreted and given a meaning depending on the context,
object and purpose behind a particular Article. The word
‗consultation' is also used in Article 320 of the Constitution.
Article 320 relates to duties of the Union in State Public
Services Commission. Clause 3 of Article 320 stipulates that
Union Public Services Commission or the State Public Services
Commission shall be consulted to on various aspects including
all matters relating to civil services and civil posts. Interpreting
Clause 3 of Article 320 the Supreme Court, in State of U.P. vs.
Manbodhan Lal Srivastava, AIR 1957 SC 912 and Ram
Gopal Chaturvedi vs. State of MP, (1969) 2 SCC 240, has
held that ―consultation‖ is not mandatory and will not make the
action taken on account of default of ‗consultation,' as null and
void. The word ‗consultation' used in Clause 3 to Article 320 is
to confer proper assistance to the Government but omission or
irregularity to have/make consultation does not confer any legal
or constitutional right.
19. It may be appropriate now to refer to the judgment of the
Supreme Court in P K Sandhu vs Shiv Raj Patil (1997) 4 SCC
348. In the said case the petitioner therein had challenged
appointment of Additional Secretaries and Joint Secretaries on
deputation to the Secretariat. The Supreme Court examined
power under Article 98(3) to frame Rules and it was observed
that in the absence of any legislation, the President may after
consultation with the Speaker/Chairman can make rules
regulating the recruitment and conditional services of the
persons. Thus, it was categorically held that the special power
to make rules exists under Article 98(3) of the Constitution. It is
not a short term provision and it is not mandatory for the
Parliament to enact and prescribe service conditions. The other
question which arose was with regard to the orders which the
Speaker/Chairman are authorized to pass under the Rules with
regard to appointment, recruitment, terms and conditions of
service etc. Pursuant to the order dated 2nd August, 1996
passed by the Supreme Court, an order dated 19th October,
1996 was published by the Speaker to permit appointment to
the posts of Joint Secretary, Additional Secretary and Secretary
General to the Lok Sabha Secretariat by transfer on deputation
as stipulated in the order. Question arose whether the said
order was in violation of the Rules or Article 98(3) of the
Constitution. The contention was repelled by the Supreme
Court for the reasons stated below:
―8. Similarly, it is contended that the Rules
have not been given any retrospective effect
and, therefore, the officers on deputation, i.e.,
Respondents 5 to 10 -- is bad in law. We find
no force in the contention. It is settled legal
position that Rules would be operative from
the date when they came into force, namely,
in this case, 19-10-1996. Therefore, the
officers on deputation would get legal right to
remain in service from that date. Though they
have been drafted earlier in consultation with
the Leader of the Opposition etc., it is
contended that the deputation to the
Secretariat Service was not in accordance
with the Rules and, therefore, it is not valid in
law. With a view to remove the ambiguities,
we had directed Hon'ble the Speaker to take
necessary steps by way of an amendment to
the Rules. In furtherance thereof, the above
Rules came to be made. The Rules are now
streamlined.
9. It is seen that in 1955 Rules, which were
framed by the Speaker in consultation with
the President by exercising the power under
clause (3) of Article 98 of the Constitution of
India, Rule 4 contemplates the method or
methods by which a post or class of posts
may be filled. Since the 1962 Orders are only
an outcome of the exercise of the said power,
which was further modified by amendment in
the Order dated 1-12-1974, the power of
modification of the original order was still
available to the Speaker and, therefore, the
deputation of Respondents 5 to 10 was not
without any authority of law or in excess of
authority. Therefore, they are not void ab
initio for issue of a writ of quo warranto. It is
not necessary for us to decide the
controversy whether the Speaker had power,
when services of Respondents 5 to 10 were
requisitioned and availed of on transfer basis
from the All India Administrative Service for
the reason that under the amended Rules,
one of the sources of recruitment to the
service is transfer. Therefore, the
continuance of Respondents 5 to 10 on
deputation is in accordance with law and their
retention in Lok Sabha Secretariat is valid as
they have legal authority to remain in its
Services. The further contention that
availment of the services of the Secretary-
General on contract basis is invalid, is without
substance. It is settled legal position that an
in-service officer, if taken on contract basis
during the period of service, renders service
on contract basis and on expiry thereof he
gets to his substantive post in the parent
Department from where he came to be in the
services of the Lok Sabha Secretariat. In the
interregnum, he cannot be compelled to lose
his lien on the substantive post in the parent
Department. Even if the services of an
incumbent on superannuation is required in
the public interest, the same can be availed
on contract basis. Equally, if any other
competent officer who on attaining
superannuation from any other service was
required to be taken in due to exigency of the
service, it may be open to the Speaker to
avail of services of such an experienced
officer on contract basis for a specified
period. Thus in either event the option
available to the Speaker to avail of the
services of an experienced officer as
Secretary-General, cannot be assailed as
invalid or arbitrary.‖
20. In this context, it would be appropriate to reproduce the
observations of this Court in P.K. Bhandari vs. Hon'ble
Speaker Lok Sabha, 1997 (42) DRJ 152, wherein the Lok
Sabha Rules, 1955 were examined and it has been held as
under:-
―(50) When the various provisions of
the Constitution of India are analysed, it
becomes abundantly clear that the legislature
is the third organ of the State. According to the
scheme of the Constitution each organ is
independent. The Speaker being the head of
the Lok Sabha enjoys a unique position. The
Constitution has given unfettered powers to the
Speaker for recruitment, appointment,
promotions and fixing service conditions of the
employees of the Lok Sabha. The question
which arises for consideration is, whether the
Recruitment Rules and Regulations formulated
at one point of time be changed or amended by
the Speaker or he is bound by those rules and
regulations for all times to come. Article 98 of
the Constitution is so worded that the President
may after consultation with the Speaker of the
House of the People or the Chairman of the
Council of the States as the case may be,
make rules regulating the recruitment and the
conditions of the persons appointed to the
Secretariat staff of the House of People or
Council of the States. After the rules which
have been made by the President are analysed
carefully, then according to Clause 3(2) of 1955
Rules. It is absolutely clear that the Speaker is
given complete authority for formulating the
rules and regulations of recruitment of the
service conditions of the employees of the Lok
Sabha. According to Clause '4', of the said
rules the Speaker may by his order from time to
time specify the method by which a post or a
class of posts may be filled. According to
clause '5' the qualification for recruitment to any
post or class of posts shall be such as the
Speaker may specify from time to time by a
general or special order. From the clause '6' it
is clear that all appointments to the post shall
be made by the Speaker. According to the
1955 rules framed under article 98 of the
Constitution, It is abundantly clear that the
Speaker is really the framer, operator and final
interpreter of these rules and consequently he
can amend these rules from time to time. The
rules, qualification for recruitment and method
of recruitment are really meant for the internal
management of the House and the Constitution
has given full authority to the Speaker to frame
and amend them as and when required.
(51) In view of the judgment of the
Hon'ble Supreme Court in P.K. Sandhu vs.
Shivraj Patil (supra) now there is no scope of
any controversy. The Supreme Court has
clearly interpreted in the said case that the
Speaker has powers to amend earlier orders.
In pursuance of the directions of the Supreme
Court, the Lok Sabha Secretariat framed
Recruitment and Conditions of Service on
19.10.1996. By this order all earlier orders
issued from time to time were superseded. All
recruitments and appointments in the Lok
Sabha are to be governed by this order.‖
21. A similar view has been taken by a Division Bench of
Punjab and Haryana High Court while examining and
interpreting Article 187(3) of the Constitution, which deals with
the Secretariat attached to a State legislature and the terms and
conditions of the employees of the Secretariat. In Speaker
Vidhan Sabha and Others Vs. Sita Ram and Others, 1975
LAB.I.C. 415, Article 187 of the Constitution was examined with
reference to the history of the Secretariat attached to the
legislative wing of the government. The Speaker of the Punjab
Vidhan Sabha on the basis of the delegated powers under the
Rules framed in 1952 had inserted a citation inviting applications
for the post of assistant. This was challenged and it was
submitted that as per Article 187(3) of the Constitution, the
Speaker cannot make appointments in the absence of rules
framed by the Governor and the Governor was bound to make
rules specifying the qualification and other conditions of service.
No appointment could be made by the Speaker on the basis of
executive direction issued by the Governor. Rejecting the said
contention and reversing the judgment of the single Judge, it
was held:-
―10. The exalted office of the
Speaker is of no less importance. He
presides over the Legislative Assembly which
consists of chosen representatives of the
people and which is charged with the duty of
framing laws for the governance of the State.
In his own sphere, Mr. Speaker is supreme
and the Constitution has rightly acknowledged
him as the Head of his own Secretariat. The
incumbents of the office of the Speaker have
set up a very healthy convention of
disaffiliating themselves from the political
parties to which they belonged prior to their
election as Speakers. Naturally, it was
desirable that the Governor and the Speaker
alone should associate for framing rules for
the members of the establishment of Mr.
Speaker or, otherwise, the action of Mr.
Speaker would be bound by the rules framed
by an authority which according to the
Warrant of Precedence and the high traditions
of the office of the Speaker may be inferior to
him. such a situation would not have been
compatible with the dignity of the high office
which Mr. Speaker holds. It is precisely for
this reason that under Article 187 (3) of the
Constitution it has been provided that the
Governor may, after consultation with the
Speaker, make rules regulating the
recruitment and conditions of service of
persons appointed to the Secretariat staff of
the Assembly. The words, ―such person as he
may direct‖, which appear in Article 309 in
relation to the legislative power of the
Governor have been purposely omitted from
Article 187(3) of the Constitution. From the
difference in the phraseology employed in
Article 187 and Article 309 of the Constitution,
it cannot be inferred that the Governor must,
of necessity, himself lay down the conditions
of service of the members of the Secretariat
staff of the Assembly in stead of leaving this
matter to the discretion of Mr. Speaker.
Power to frame rules under proviso to Article
309 was made exercisable by another person
under the authority of the Governor for the
simple reason that the nature and number of
services under the executive were large. The
same considerations do not prevail in the case
of Secretariat staff of Mr. Speaker.
11. xxx
12. This matter is not res integra.
Proviso to Article 309 which is in pari materia
with Article 187(3) of the Constitution, came
up for consideration on more than one
occasion before the highest Court of the land.
In B. N. Nagarajan V. State of Mysore, AIR
1966 SC 1942 it was observed as under:
―Mr. Nambiar contends that the words,
―shall be as set forth in the rules of recruitment
of such service specifically made in that
behalf‖ clearly show that till the rules are
made in that behalf no recruitment can be
made to any service. We are unable to accept
this contention. First, it is not obligatory under
proviso to Article 309 to make rules of
recruitment, etc., before a service can be
constituted or a post created or filled. This is
not to say that it is not desirable that ordinarily
rules should be made on all matters which are
susceptible of being embodied in rules.
Secondly, the State Government has
executive power, in relation to all matters with
respect to which the Legislature of the State
has power, to make laws. It follows from this
that the State Government will have executive
power in respect of List II. Entry 41, State
Public Services. It was settled by this Court in
Ram Jawaya V. State of Punjab, 1955-2 SCR
225 = (AIR 1955 SC 549) that it is not
necessary that there must be a law already in
existence before the executive is enabled to
function and that the powers of the executive
are limited merely to the carrying out of these
laws. We see nothing in the terms of Article
309 of the Constitution which abridges the
power of the executive to act under Article 162
of the Constitution without a law. It is hardly
necessary to mention that if there is a
statutory rule or an Act on the matter, the
executive must abide by that act or rule and it
cannot in exercise of the executive power
under Article 162 of the Constitution ignore or
act contrary to that rule or Act.' (emphasis
supplied). Again, in Sant Ram Sharma V.
State of Rajasthan, AIR 1967 SC 1910 it was
held :
―We pass on to consider the next
contention of Mr. N. C. Chatterjee that if the
executive Government is held to have power
to make appointments and lay down
conditions of service without making rules in
that behalf under the proviso to Article 309,
there will be violation of Articles 14 and 16,
because the appointments would be arbitrary
and capricious. In our view, there is no
substance in this contention of the petitioner.
If the State of Rajasthan had considered the
case of the petitioner along with the other
eligible candidates before appointments to the
selection post there would be no breach of the
provisions of Articles 14 and 16 of the
Constitution because everyone who was
eligible in view of the conditions of service and
was entitled to consideration was actually
considered before promotion to those
selection posts were actually made.‖
In Tejinder Singh v. State of Punjab, Civil
writ No. 2675 of 1973, decided on 31-5-1974
(reported in 1975 Lab IC 203) (Punj) while
speaking for the Bench. I held as under:
―I am of the considered view that the
Government is competent to determine the
inter se seniority of the officiating and
temporary public servants in the absence of
any statutory rules on the subject.‖
In my considered opinion, the same
considerations would apply to the legislative
power of the Governor under Article 187(3) of
the Constitution. If the rules are framed under
that provision, the same would have to be
followed without any exception, but if there are
no rules on the subject, it would be open to
the Governor to issue executive instructions
entitling Mr. Speaker to make appointments to
the staff of his Secretariat.‖
22. It is, therefore, apparent that the Chairman/Speaker under
Article 98(3) and the Speaker of the State legislature under
Article 187(3) have been exercising powers including prescribing
the terms and conditions of employment/posts etc. in the
secretariat of the legislature. The said situation has continued
and power has been repeatedly exercised since 1950 when the
Constitution was adopted. In various judicial pronouncements
exercise of power by the Speaker has been upheld and
accepted.
23. In view of the aforesaid reasoning, the first two contentions
of the petitioners have to be rejected. It is held that the Rules
have been validly made under Article 98(3) of the Constitution
and the Rules or the order issued do not fall foul and are not
ultra vires on account of excessive delegation.
Factual allegations and discussion in W.P.(C)1559/1997
Bhagvan Singh Guleria Vs. Union of India.
24. The prayers made in the writ petition read as under:-
―(a) directing the respondents 2 and 3 for
restoration of just and legitimate seniority and
due appointments and promotions and
confirmations of the petitioner in the Rajya
Sabha Secretariat of respondent No.2 in
accordance with the actual entitlement of the
petitioner relating to the actual seniority upon
the respondent No.7 and also on the basis of
written tests held in the year 1983, 1984, 1986,
1988 and to appoint the petitioner at the level
where the petitioner should be, had the
petitioner not been caused discrimination and
injustice.
b) directing the respondents 2 and 3 to
restore the monetary loss suffered by the
petitioner due to the supersession of the
petitioner by the respondent No.7 and delaying
the promotions of the petitioner and also arising
out of the ante dating of the promotion of the
petitioner at the level of Assistant;
c) declare Rajya Sabha Secretariat
(Recruitment and Conditions of Service) Rules,
1957 and subsequent amendments thereto and
also the orders and Circulars issued by the
respondent 2 to 4 from time to time under the
Rules 1957 or subsequent amendments thereto
as unconstitutional and ultra virus (sic) of
Articles 14, 16 and 98 of the Constitution of
India;
d) declare that the post of Assistant and
Senior Assistant are one and the same and
interchangeable and principle of equal pay for
equal work shall be extended to these grades to
the post of Section Officer, now ―Executive
Officer‖, and the arrears of pay on the basis of
equal pay for equal work be directed to be paid
to the petitioner;
e) declare that no direct recruitment in the
post of Senior Assistant shall be made by the
respondents 2 to 6; and/or
f) issue any such Writ or Writs or orders as
are deemed fit and necessary in the interest of
justice.‖
25. Prayer (c) has already been discussed above and it has
been held that the same cannot be granted. This leaves the
question whether acts or the orders or amendments made in the
recruitment or the eligibility norms are ultra vires, arbitrary,
discriminatory or violate Articles 14, 15 and 16 of the
Constitution.
26. Bhagwan Singh Guleria, the petitioner had joined the
Rajya Sabha Secretariat as a Lower Division Clerk (LDC) on 21st
November, 1974 and was promoted as an Upper Division Clerk
(UDC) on ad-hoc basis with effect from 9th March, 1981 and on
regular basis with effect from 16th February, 1982. He has raised
two contentions. Firstly, he is senior to respondent No.7, Tara
Chand Sharma and, secondly, he has been wrongly denied
promotion to the post of Assistant because of the order dated
22nd March, 1984 by which there was merger of the Pay and
Accounts office/department with Rajya Sabha Secretariat and
inter se seniority of the officials working in the two departments
was fixed.
27. Respondent No.7, Tara Chand Sharma was initially
appointed in the Rajya Sabha Secretariat as a class-IV
employee. His initial date of appointment has not been disclosed
by the petitioner. He was appointed as a LDC in Rajya Sabha
Secretariat and was transferred to Pay and Accounts office on
12th August, 1975. It is alleged that the petitioner was transferred
to Pay and Accounts office as a LDC but was subsequently
transferred back to Rajya Sabha Secretariat. Respondent No.7
was promoted as UDC on 12th August, 1980 and as noticed
above, the petitioner was promoted as UDC on ad-hoc basis
with effect from 9th March, 1981 and on regular basis with effect
from 16th February, 1982.
28. As far as inter se seniority between the petitioner and
respondent No.7 is concerned, it is noticed that the present writ
petition was filed in 1997, whereas the promotions of the
petitioner and the respondent No.7 as UDCs were made in
1980-1982. Further, the Rajya Sabha Secretariat and Pay and
Accounts office were merged in 1984 and thereafter inter se
seniority between employees of the two departments was
determined. There is considerable delay and laches on the part
of the petitioner in approaching the Court. It may be noticed here
that the petitioner had filed C.M.No.7678/1998 under order 1
Rule 10 read with Section 151 of the Code of Civil Procedure for
impleading as many as 212 employees of Rajya Sabha
Secretariat as respondent Nos.8 to 219. Vide order dated 29th
January, 1999, it was directed that this application would be
heard along with the main writ petition. Notice has not been
issued to the said non-applicants. At the time of hearing, this
application was not adverted to by the counsel for the petitioner.
29. Respondent Nos.2 to 5 in the counter affidavit have
clarified that prior to 1st March, 1984, Pay and Accounts office of
the Rajya Sabha Secretariat was functioning as a separate
independent unit and it was directly controlled by Secretary
General, Rajya Sabha. Originally the Pay and Accounts Office of
Rajya Sabha was manned by personnel drawn from the office of
the Accountant General, Central Revenue. Accordingly,
promotions and confirmations in the Pay and Accounts office
were made within that office and the employees in the said
department did not have claim to the posts in the main
Secretariat. Similarly, employees in the main Secretariat could
not be considered for promotions and confirmations in the Pay
and Accounts office. Subsequently, Rajya Sabha Secretariat
started facing difficulties in getting suitable persons from the
Accountant General, Central Revenue to man posts in the Pay
and Accounts office. These posts were temporarily filled up by
transferring persons from the main Secretariat. Thereafter,
employees were recruited through a common examination and
were allocated between the two units i.e. Pay and Accounts
office and Rajya Sabha Secretariat according to the need and
requirement from time to time. This gave rise to certain
anomalies because employees allocated to Pay and Office got
early confirmations/promotions vis-à-vis their other colleagues in
the main Secretariat. Accordingly, it was decided to merge the
Pay and Accounts Office with the main Secretariat with effect
from 1st March, 1984 vide circular dated 22nd March, 1984. The
inter se seniority was fixed in accordance with the order
regulating the seniority of the officers.
30. In view of the explanation given and the delay on the part
of the petitioner in approaching the Court, we do not find any
merit in the contention raised by the petitioner with regard to the
inter se seniority between him and the respondent No.7. As
noticed above, any change in the seniority list after the gap of 13
years i.e. between 1984 and 1997 can lead to other
complications and anomalies. We feel, the petitioner cannot
urge and question the settled issues.
31. With regard to promotion to the post of Assistant, it is
noticed that the respondent No.7 was promoted with effect from
8th August, 1992 on ad-hoc basis and on regular basis from 30th
July, 1993 or 23rd September, 1993. The petitioner was
promoted as Assistant on performance basis on 28th March,
1995. The petitioner cannot challenge promotion of the
respondent No.7 as Assistant in case he is not permitted to
challenge the inter se seniority between them pursuant to
merger of the Pay and Accounts unit with the main Secretariat
with effect from 1st March, 1984.
32. In the writ petition it has been stated that by the 1974
order, new posts were added in the secretariat. There was re-
designation and sub-classification. Employees of the Rajya
Sabha Secretariat were excluded and could not be promoted to
the post of Table Assistant, Legislative Assistant, Legislative
Committee Assistant, Conference and Protocol Assistant. These
posts were to be filled through direct recruitment. A new
categorization of posts and designating them as legislative
services and the other as administrative services was adopted.
In 1980 another order was issued whereby the legislative
services and administrative services were unified and merged. A
new post ‗Senior Assistant' was created in between Assistant
and Section Officer, now called Executive Officer. Open
competitive tests for the post of Senior Assistant were
conducted in the years 1979, 1981, 1983, 1984 and 1986.
Allegations have been made that some persons were given
relaxation and promoted.
33. It may be noted that the petitioner had appeared in the test
for selection as a Senior Assistant in 1983, 1984 and 1986, but
did not qualify. The petitioner had appeared in the examination
in 1988 and qualified the written test for the post of Senior
Assistant. However, at that time, the respondent Nos.2 to 5 had
introduced provision for interview and the petitioner was
disqualified in the interview. Again we are not inclined to
examine the said allegations, which are also vague, in view of
delay and laches. Open competitive examination was held in
1993 for the post of Senior Assistant but the petitioner did not
appear in the said examination. The claim of the petitioner is that
he was not informed. It is difficult to believe that the petitioner
was not aware of the said examination as he was working in the
said establishment and his colleagues were appearing.
34. The respondents in the counter affidavit have justified and
given explanation why changes were made from time to time.
They have denied that the post of Senior Assistant was created
with effect from 1st December, 1974. It is stated that the said
post was already in existence between the grade of Assistant
and Section Officer i.e. Executive Officer. It is stated that only
25% marks were earmarked for interview and the criteria
prescribed was that a candidate should have obtained 50%
marks in aggregate and 40% marks in each paper in the written
examination. Some appointments were made in 1983 on
conditional basis due to non-availability of sufficient number of
qualified candidates. These conditional appointees had not
obtained 40% in one of the three papers in the written
examination. After amendment, it was decided that recruitment
to the post of Senior Assistant shall be done 50% by direct
recruitment and 50% by promotion.
35. With effect from 21st June, 1995, direct recruitment to the
post of Senior Assistant was completely given up and
appointments to the said posts were to be made by on selection
from the grade of Assistant with the minimum of 5 years' service
in the pay scale of 1640-2900 and above.
36. The aforesaid facts do reveal that there have been
frequent changes in the terms and conditions of
recruitment/eligibility norms. These do give rise to some doubts,
but to go into the question of malice, legal or factual, no details
and basis are stated and pleaded. These are missing. In Dilip
Kumar Garg vs. State of U.P., (2009) 4 SCC 753 the Supreme
Court has observed:
―15. In our opinion Article 14 should not be
stretched too far, otherwise it will make the
functioning of the administration impossible.
The administrative authorities are in the best
position to decide the requisite qualifications
for promotion from Junior Engineer to
Assistant Engineer, and it is not for this Court
to sit over their decision like a court of
appeal. The administrative authorities have
experience in administration, and the Court
must respect this, and should not interfere
readily with administrative decisions. (See
Union of India v. Pushpa Rani and Official
Liquidator v. Dayanand.)
16. The decision to treat all Junior
Engineers, whether degree-holders or
diploma-holders, as equals for the purpose of
promotion is a policy decision, and it is well
settled that this Court should not ordinarily
interfere in policy decisions unless there is
clear violation of some constitutional
provision or the statute. We find no such
violation in this case.
17. In Tata Cellular v. Union of India it has
been held that there should be judicial
restraint in administrative decision. This
principle will apply all the more to a rule
under Article 309 of the Constitution.‖
Factual allegations and discussion in W.P.(C)3069/1992 V.
P. Goel & Ors. Vs. Union of India.
37. This writ petition has been preferred by ten petitioners who
were working as Assistants and Senior Assistants in Lok Sabha
Secretariat. The prayer clause in the amended writ petition
reads as under:
― (1) Writ of certiorari quashing the impugned
rules i.e. Lok Sabha Secretariat (recruitment
and conditions of service) Rules 1955 to be
specific Rule 3, 8 & 9 of the aforesaid Rules
as the same are unconstitutional being
violative of articles 14,16 & 98(3) of the
Constitution;
(2) Writ of mandamous directing the
respondents to consider their placement in
the Higher scale of Rs.2,200-4,000/-; and
(3) Writ of certiorari quashing the provision of
the post of Sr. Assistants in the Lok Sabha
Secretariat Recruitment and conditions of
service rules 1955 and issue directions and
orders as are deemed fit and necessary in
the interest of justice.‖
38. Prayer (1) is to be rejected in view of the discussion
above. Challenge to the vires of the Rules framed under Article
98(3) of the Constitution and excessive delegation has to fail
and is rejected. Prayer (3) has been also discussed above.
39. The petitioners have alleged that there is further
delegation by the Speaker to the Secretary/Secretary General.
Reference in this regard has been made to the order dated 5th
June, 1989 with specific reference to clause 6(4). The aforesaid
clause was substituted vide amendment made on 17th July,
1990, order no.PDA-768/1990. It was directed by this order that
the word ‗Secretary General' wherever appearing in the original
order shall be substituted by the word ‗Speaker', except in
clause 2. The petitioners, however, have referred to a
subsequent order dated 17th January, 1994 PDA-855/94. This
order states that all matters connected with administration of the
Lok Sabha Secretariat (Recruitment and Conditions of Service)
Rules, 1955 were to be disposed of by the Secretary General or
Additional Secretary whoever was in charge of administration.
In case of disagreement between the Secretary and the Ministry
of Finance, the matter should be brought to the personal notice
of the Speaker before any order was issued. The aforesaid
order does not amount to delegation or modification of the Rules
relating to recruitment and conditions of service of the staff
belonging to Lok Sabha Secretariat. It refers to day to day
administration. It is apparent that the Speaker had retained the
control and continued to retain control over the Secretariat.
40. In the written submissions a number of contentions have
been raised by the petitioners, which travel beyond the
pleadings and the scope of the writ petition. We are not
examining these contentions. In the writ petition, two
contentions have been raised. Firstly, the petitioners have
claimed parity and equivalence with posts similar to posts of the
Government of India. However, the relevant details etc. are not
stated to make out a case of parity. It has been repeatedly held
that the question of parity requires examination of number of
facts including eligibility norms, conditions of service, type of
duty, responsibility etc. Without relevant details the claim for
parity again does not merit adjudication. Moreover, it is not clear
in what context and how do the petitioners claim that they were
discriminated.
41. The second claim made by the petitioners, as is apparent
from prayer, clause 2, is with reference to the amendment
made by order no.PDA741/89 dated 15th June, 1989 for
qualifications to the promotional channel to the post of Assistant
and Senior Assistant. The comparative difference between
order no.PDA 335/19/751 dated 1st December, 1974 and order
no.741/89 dated 15th June, 1989 reads as under:
R & CS Order No.PDA-335/74 R & CS Order No.PDA-
dated 1-12-1974 741/89 dated 15-6-89
ASSISTANT ASSISTANT
For Promotion For Promotion
By selection from the grade By selection from
Upper Division Clerk, with persons holding posts in
minimum of five years' service in the scale/s with the
the grade minimum of Rs.1200 and
above with a minimum of
five years' service in the
scale/s or 10 years
combined service in the
scales with a minimum of
Rs.1200 and Rs.950/-
and above.
For direct recruitment For direct recruitment
By open competition from From Graduates, based
amongst candidates with a on result of a competitive
minimum qualification of examination to be
Graduation. conducted for a purpose.
Preference will be given
to post graduate/first
class graduates or
candidates possessing
higher qualification.
TABLE ASSISTANT, LOBBY SENIOR ASSISTANT
ASSTT LEGISLATIVE
ASSISTATN ETC.
For Promotion For Promotion
By selection from the grade(s) or By selection from
Assistant (including Sales persons with at least five
Assistant, Stores Assistant, years' of service in
Distribution Assistant and scale/s with minimum of
Records and Archives Assistant) Rs.1400/- and above or
with a minimum of five years 10 years combined
service in the grade(s). service in the scales with
a minimum of Rs.1400/-
and Rs.1200/- and
above.
For Direct Recruitment For Direct Recruitment
Through open competition from Through open
amongst candidates possessing competition from
Master's Degree or Bachelor's amongst candidates
degree in Law, Chartered possessing Master's
Accountant or Cost Accountants Degree or Bachelor's
or possess Degree in Degree in law, Chartered
Commerce/Economics or Accountant or Cost
Management or Graduates with Accountants or
other higher qualifications and/or possessing Degree in
experience. Commerce, Economics
or Management or
Graduates with other
higher qualifications
and/or experience.
(c) That the pay scale attached to the post of
Assistant before 1-1-86 was Rs.425-800 and that of
Senior Assistant Rs.550-900.‖
42. Right to amend and change service conditions have been
examined above. The respondents 2 and 5 have clarified that on
the basis of recommendations of the Fourth Pay Commission, a
Pay Committee was set up to recommend pay scales of officers
for staff of the Lok Sabha and Rajya Sabha Secretariats. The
Pay Committee recommended pay scale of 1400-2600 for the
grade of Assistant and 1640-2900 for the grade of Senior
Assistant who were earlier known Lobby Assistant, Legislative
Assistant etc. These pay scales became effective from 1st
January, 1986. Subsequently, the Ministry of Personnel, PG &
Pension issued OM dated 2nd January, 1990- CS-IV dated 31st
July, 1990 revising the scale of Assistant and Stenographers
grade of the Central Secretariat Services from 1400-2600 to
1600-2900 with effect from 1st January, 1986. This revised scale
was made applicable to Assistants, Hindi Assistants and
stenographers in the Lok Sabha Secretariat vide order
no.808/91 dated 29th October, 1991. It is stated in the counter
affidavit which was filed on or about August, 1993 that the pay
scale of Senior Assistants which was 1640-2900 had not been
revised and was still under consideration of the Secretariat. We
may notice here that the post of Senior Assistant is a
promotional post from the grade of Assistant and recruitment to
this post is also through direct recruitment. It has also been
clarified by respondents Nos. 2 to 3 that some of the private
respondents were inducted/appointed as Senior Assistant by the
method of direct recruitment having participated in the
examination and the selection process. The petitioners therefore
cannot claim that they were senior to these persons who were
appointed and selected through direct recruitment. There is no
discrimination or violation of Article 14.
43. Accordingly, we do not find any merit in the writ petitions
and the same are dismissed. No costs.
(SANJIV KHANNA)
JUDGE
(DIPAK MISRA)
CHIEF JUSTICE
May 13, 2011
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