Bhagvan Singh Guleria vs Uoi & Ors.
2011 Latest Caselaw 2579 Del

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.:

	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.

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.

Article 98 of the Constitution reads as under :

98. Secretariat of Parliament.--(1) Each House of Parliament shall have a separate secretarial staff:

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.

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 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.

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.

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;

(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.

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.

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.

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)].

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.

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").

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.

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 dated 1-12-1974 R & CS Order No.PDA-741/89 dated 15-6-89 ASSISTANT ASSISTANT For Promotion For Promotion By selection from the grade Upper Division Clerk, with minimum of five years' service in the grade By selection from persons holding posts in the scale/s with the 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 amongst candidates with a minimum qualification of Graduation.

From Graduates, based on result of a competitive examination to be conducted for a purpose. Preference will be given to post graduate/first class graduates or candidates possessing higher qualification.

TABLE ASSISTANT, LOBBY ASSTT LEGISLATIVE ASSISTATN ETC.

SENIOR ASSISTANT

For Promotion For Promotion By selection from the grade(s) or Assistant (including Sales Assistant, Stores Assistant, Distribution Assistant and Records and Archives Assistant) with a minimum of five years service in the grade(s).

By selection from persons with at least five years' of service in scale/s with minimum of Rs.1400/- and above or 10 years combined 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 amongst candidates possessing Master's Degree or Bachelor's degree in Law, Chartered Accountant or Cost Accountants or possess Degree in Commerce/Economics or Management or Graduates with other higher qualifications and/or experience.

Through open competition from amongst candidates possessing Master's Degree or Bachelor's Degree in law, Chartered Accountant or Cost Accountants or possessing Degree in 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 vld