Nanak Saran Srivastava v. State of U. P. and ors — 1970 DIGILAW 367 (ALL)

JUDGMENT Jagdish Sahai, J. - Sri Nanak Saran Srivastava (hereinafter referred to as the petitioner) was serving as superintendent in the Legislative Council Secretariat in February, 1968 His date of birth as recorded in his service hook is 13-2-1913. Sri Darbari Lal Sharma, the then Chairman of the Legislative Council issued a notice to the petitioner which reads :- "In exercise of the powers under paragraph (i) of the first proviso to Cl. (a) of Fundamental Rule 56, contained in a Financial Hand Book Volume II, Parts II and IV as amended from time to time. I, Darbari Lal Sharma, Chairman, Legislative Council. U. P being the appointing authority in respect of the Post and grade held by you. hereby give notice requiring you Shri Nanak Saran Srivestava, Superintendent, Legislative Council Secretariat to retire from service on your attaining the age of 55 years i. e. on February 12, 1968 afternoon. Sd/- Darhari Lal Sharma, Chairman, Legislative Council, Uttar Pradesh." This notice has been challenged in this writ petition and it has been prayed that writ of certiorari be issued to quash it and a writ of mandamus be issued commanding the respondents (i) State of Uttar Pradesh, (ii) Chairman, Legislaiive Council, and (iii) Sri Darbari Lal Sharma not to implement the notice mentioned above and not to retire the petitioner in pursuance of that notification, and further to treat the petitioner as continuing in service till 12-2-1971. There is also the usual prayer for the issue of any other writ, order or direction as this Court may in the circumstances of the case deem fit and proper to issue. 2. Sri Darbari Lal Sharma has since died and no one has been impleaded in his place. 3. We have heard Sri S.D. Misra for the petitioner and Sri Umesh Chandra learned Standing Counsel for the respondents. 2. Sri Darbari Lal Sharma has since died and no one has been impleaded in his place. 3. We have heard Sri S.D. Misra for the petitioner and Sri Umesh Chandra learned Standing Counsel for the respondents. Sri S.D. Misra has made the following three submissions before us: (i) That the notice mentioned above is bad because the Chairman of the Legislative Council (in the present case Sri Darbari Lal Sharma) had neither appointed nor confirmed the petitioner as Superintendent in the Legislative Council Secretariate and inasmuch as Fundamental Rule 56 gives the option of retiring a Government servant after he attains the age of 55 years to the appointing authority, the petitioner could have been retired only by a notice issued or by an order passed by the Secretary Legislature who had appointed him and confirmed on the post of Superintendent, Legislative Council. (ii) That Sri Darbari Lal Sharma issued the notice mentioned above mala fide because he wanted to provide some other person in the place of the petitioner. (iii) That there has been a discrimination practised by the Chairman against the petitioner in so far as people with much worse character rolls (it is contended that the petitioner's character roll is outstanding) have been allowed to continue after attaining the age of 55 years and the petitioner has been made to retire. We proceed to consider the submissions serially. 4. There is a dispute between the parties as to who in fact appointed the petitioner as Superintendent, though there is no dispute whatsoever 135 about the person who confirmed him on that post, it being the admitted case of the parties that the petitioner was confirmed by the Secretary Legislature. We have seen the order of appointment of the petitioner Superintendent, Legislative Council Secretariat. So far as relevant our purposes the order reads:- Consequent on the appointment of Sri P.S. Pachaury, as office Secretary. Legislative Council, 'U.P. temporarily with from 15-7-1955 the appointment of an Assistant from they Service as Superintendent has been engaging my (italicised by us). At present there are the superior Service Assistants in the Legislative Council and one personal Assistant to the Hon'ble be considered for promotion. The senior-most, them is Sri Nanak Saran Sivastava, B.A. L.L.B He is continuously holding the '-post of a Superior Service Assistant from 15-2-040 and has been confirmed on that post on 1-4.1950. ... ... ... ... At present there are the superior Service Assistants in the Legislative Council and one personal Assistant to the Hon'ble be considered for promotion. The senior-most, them is Sri Nanak Saran Sivastava, B.A. L.L.B He is continuously holding the '-post of a Superior Service Assistant from 15-2-040 and has been confirmed on that post on 1-4.1950. ... ... ... ... ... ... ... ... Out of the above six Sri Nanak Saran Srivastava whose name has been given at No. I is the senior-most Assistant. He has also officiated as Superintendent in leave vacancies. He further held the post of Assistant Superintendent Incharge of Elections to the Graduate and Teachers Constituencies in 1954. His record of service is good. There is no adverse entry in his character roll. There is every reason to appoint him as Temporary Officiating Superintendent Legislative Council (italicised by us). Sri Nanak Saran Srivastava shall take charge as Superintendent, Legislative Council Secretariat with effect from 15-7 1956 (forenoon) (italicised by us). The other consequential arrangements shall be made later. (Italicised by us). Sd/- Mitthan Lal, 15-7-1955. Below this there is an endorsement which reads:- "H. C. may kindly see." Sd/- Mitthan Lal, 15-7-1955. It is the admitted case of the parties that on 15-7-1955 the Secretary Legislature was Sri Mitthan Lal, and the Chairman was Sri Chandra Bhal. It is also admitted that the abbreviation 'H.C.' stands for 'Hon'ble Chairman'. On the margin of the order there is an endorsement by Sri Chandra Bhal, 'Yes'. As against the words "consequential arrangements shall be made later" there is an endorsement by Sri Chandra Bhal "these may be put up early." 5. On the basis of this order Sri S.D. Misra has strenuously contended that the language of the order and its contents leave no room for doubt that the appointment of the petitioner as Superintendent was made by Sri Mitthan Lal, the then Legislature Secretary and not by Sri Chandra Bhal, the then Chairman. It has been submitted that after making the appointment Sri Mithan Lal sent the order of appointment to the Chairman (Sri Chandra Bhal) only for purpose of seeing it. In other words, according to Sri S.D. Misra, the only object of the endorsement made to the Chairman was to apprise him of the petitioner's appointment. It has been submitted that after making the appointment Sri Mithan Lal sent the order of appointment to the Chairman (Sri Chandra Bhal) only for purpose of seeing it. In other words, according to Sri S.D. Misra, the only object of the endorsement made to the Chairman was to apprise him of the petitioner's appointment. No document has been produced before to show that the Chairman of the Legislative Council appointed the petitioner as Superintendent, and it is common case of the parties that the document Li that we have reproduced above is the only document that relates to the, appointment of the petitioner as Superintendent of the Secretariat r , Legislative Council, U. P. 6. We have already said earlier that there is no dispute that confirmation of the petitioner as Superintendent was made not by the chairman but by the Secretary Legislature. Even though it is a matter of lion, in our opinion, it would contribute to a better understanding of the p raised before us if we reproduce the order confirming the petitioner, Cots judgment. Order of confirmation reads: Vidhan Parishad Sachivalaya, Uttar Pradesh, August 21, 1958. No. 4332/V. P.-303 57-Nanak Saran Srivastava a permanent official of this Secretariat is confirmed as Superintendent of the Uttar Pradesh Vidhan Parishad Sachivalaya with effect from April 1. 1957, the date on which the said post was made permanent, vide, G. O. No. 2132/XVII- 203(2)-52 dated October 4, 1957. By order Rup Chandra, Sachiv. The parties agree that on 21.8-1958 Sri Rup Chandra was occupying the post of Legislature Secretary and that the confirmation order was no. even endorsed to the Chairman for any purpose. Sri Umesh Chandra, learned Counsel has. however, in a forceful argument submitted that whatever may be the factual position, under the Rules framed for the U. P. Legislative Council Department the appointment authority for the post of Superintendent is the Chairman. He has placed reliance upon Rule 8 of these Rules which reads: "The Superintendent shall be appointed by the President and appointment to and confirmation in the post of Superintendent shall be notified in the Gazette. For purposes of the Civil Service (Classification, Control and Appeal) Rules, the Superintendent is classified as a member of a subordinate service." These rules were framed during the period when the Government of India Act. For purposes of the Civil Service (Classification, Control and Appeal) Rules, the Superintendent is classified as a member of a subordinate service." These rules were framed during the period when the Government of India Act. 1915-19 was inforce, and were published in the U. P. Gazette dated December 22, 1934. by means of the notification which reads: LEGISLATIVE DEPARTMENT No. 2233/XVII-102(l)- 1925 20th December, 1934. (Micellaneous). The following rules have been made by the local Government In exercise of the powers conferred by the Civil Service (Classification, Control and Appeal) Rules and others powers enabling them in the behalf It is clear that these rules were framed under the Government of India Act, 1915.1919 which was in force and effective at that time. At that time the various Provinces in India had only one Chamber. that is, the Legislative Council. It was by virtue of the provisions of Sections 60 and 61 of the Government of India Act, 1935 (it was enforced on 2-8-1935) that the Uttar Pradesh (it was called United Provinces at that time) like other Provinces came to have two Legislative Chambers. Section 60 of 1935 Act reads : "(1) There shall for every Province be a Provincial Legislature which shall consists of His Majesty, represented by the Governor, and. (a) in the Provinces of Madras, Bombay. Bengal, the United Provinces, Bihar and Assam, two Chambers; (b) in other Provinces, one Chamber. (2) Where there are two chambers of a Provincial Legislature they shall be known respectively as the Legislative Council and the Legislative Assembly, and where there is only one Chamber, the chamber shall be known as the Legislative Assembly. The rules that were notified in the Provincial Gazette on 22-12-1934 related only, to the Legislative Council as it existed under the 1915. 9,19 Act, and aid not apply in terms to the two Legislative Chambers that came to exist under the 1935 Act. Nothing has been shown to us that they were applied to the two newly created Legislature Chambers or they ever acted upon after 2.8-1935. 7. It is a matter of admission and we have also taken judicial notice of the fact that for the first time the post of Secretary Legislature was created on 1-11-1954 and the post of Superintendent, Legislative Council Secretriat on 1-12-1954. 7. It is a matter of admission and we have also taken judicial notice of the fact that for the first time the post of Secretary Legislature was created on 1-11-1954 and the post of Superintendent, Legislative Council Secretriat on 1-12-1954. It is well known that the Secretary Legislature is a Member of the U. P. Judicial Service who is lent on deputation to the Government in order to function as a Secretary Legislature. 8. Clearly the necessity of creating the post of Secretary Legislature arose because there were two Legislative Secretariats in this State, that is, (1) relating to the Legislative Council and (2) pertaining to the Legislative Assembly The two Units were completely separate and independent from each other but the Secretary Legislature was common and he had control over both. The position has been made clear by Sri J.K. Tardon. the then Secretary to Government U. P. in his letter dated November 1, 1954 (Annexure i5) addressed to the Secretary U. P. Legislature, Lucknow, and the Secretary U P. Legislative Assembly, Council, Lucknow,'%Paragraphs 2, 3 and 4 of that letters reads as under: "2. 1 am to state that the Governor in consultation with Sri Speaker and Sri Chairman. has been pleased to direct that the Secretary to the U. P. Legislature shall, subject to the overall control of to the Speaker and the Chairman, exercise the powers of a head of the Department in respect of the Legislative Council and Legislative Assembly Secretariats. This post will be common to both Houses of the State Legislature (italicised by us.) 3. The Secretary to the U. P. Legislature shall perform such other functions and duties as may be assigned to him by the speaker and Chairman. Sri Speaker and Sri Chairman have agree': that that he may be in direct charge of all administrative matters pertaining to the Legislative Assembly and Legislative Council Secretariats. He shall however, take the orders of the Speaker in matters concerning the affairs of the Legislative Assembly and likewise of the Chairman in matters concerning the affairs of the Legislative Council. In regard to administrative matters which are common to both the Secretariats he shall be take orders (f the Speaker hod Chairman functioning as a Board for this purpose. (Italicised by us). 4. In regard to administrative matters which are common to both the Secretariats he shall be take orders (f the Speaker hod Chairman functioning as a Board for this purpose. (Italicised by us). 4. The post of Secretary to the U. P. Legislature shall in the first instance be a tenure post and appointment thereto shall be made by by the Governor in consultation with the Speaker and Chairman " Sri Umesh Chandra learned standing Council has placed reliance upon Pradvat Kumar Bose v. Hon'ble Chief Justice Calcutta High Council, but we find nothing in that judgment to support the conclusion that the Rules published in the U.P. Gazette dated 22-12-1934 are still in force. An affidavit sworn by Sri Nanak Saran Srivastava has been filed before us The allegations in it that the prodecessor of Sri Nanak Saran Srivastava in the office of Superintendent, Legislative Council Secretariat, was also appointed by the Secretary Legislature has not been controverted. A true copy of the order appointing Sri P.S. Pachaury has been annexed to this affidavit. It reads: "From Sri J. K. Tandon, Secretary to Govt., Legislative Department, Uttar Pradesh. No. 3750/XVII 203 (2)-52 dated December 1, 1954 Legislative Department. Sir, I am directed to convey the sanction of the Governor of the creation of temporary posts of Superintendent it, the scale of 475 to 675 till March 31, 1955 The post of Assistant Superintendent Created in G.O. No. 2438/XVII/1949 dated April 6, 1950 shall be left unfilled. 2. The charge on the ............................................................... S. I. C. Kindly see the above, Sri P.S. Pachaury, Assistant Superintendent is appointed to the temporary post of Superintendent in Legislative Council with effect from this forenoon. The post of Assistant Superintendent shall remain vacant from the forenon till further orders. Sd/- Mitthan Lai, 1.12-1954:" It is admitted that on 1-12-1954 Sri Mitthan Lal was the Seceretary Legislature lature. Sri S.D. Misra contends that it is clear from the letter of Sri J.K. Tandon, referred to above, that the Secretary Legislature was Head of the Department to butt, the Secretariats, that is, U. P. Legislative Council Secreiariat and the U. P. Legislative Assembly Secret, riot. Sri S.D. Misra contends that it is clear from the letter of Sri J.K. Tandon, referred to above, that the Secretary Legislature was Head of the Department to butt, the Secretariats, that is, U. P. Legislative Council Secreiariat and the U. P. Legislative Assembly Secret, riot. He has also placed reliance upon clause (3) of Article 187 of the Constitution which reads : Until provision is made by the Legislature of the State under clause (2), the Governor may, after Consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating that- recruitment, and the conditions of service of persons appointed, to the secretarial staff of the Assembly or the Council. and any rules so made shall have effect subject to the previsions of any law made under the said clause " His submission is that the paragraphs contained in the letter of Sri J.K. Tandon. referred to above, are the rules contemplated by clause (3) of Article 187 mentioned above. It is true that they have not been printed in the form of rules, but no particular form is required for the framing of rules. It has not been shown to us that there was any other arrangement or practice in vogue than the one mentioned by Sri J K. Tendon in his letter reproduced earlier It is therefore, difficult to reject the submission of Sri S D. Misra that the paragraphs contained in Sri J. K. Tandon's letter were really the rules or in the nature of rules framed by the Governor under clause (3) of Article 187 of the Constitution The opening words of Sri J.K. Tan ton's letter also to some extent lend support to the submission made by Sri S.D. Misra. Those words are : "I am directed to say that the Government had under its consideration the question of reorganisation of the Legislative Assembly and Legislative Council a Secretariat in the light of the status of the Speaker and Chairman under the Constitution. (Italicised by us).Under the present set up the two Secretariats the Speaker/ Chairman exercises the powers of a Head of the Department with reference to the Legislative Assembly/Legislative Council Secretariat. The office of a Head of the Department is subordinate to Government in the Administrative Department. (Italicised by us). This position is obviously anomalous. (Italicised by us).Under the present set up the two Secretariats the Speaker/ Chairman exercises the powers of a Head of the Department with reference to the Legislative Assembly/Legislative Council Secretariat. The office of a Head of the Department is subordinate to Government in the Administrative Department. (Italicised by us). This position is obviously anomalous. In keeping with the dignity and status of the high office of the Speaker/ Chairman it seems essential that powers of a Head of the Department should be exercised by an officer subordinate to him. 2. I am to state that the Governor, (italicised by us) in consultation with Sri Speaker and Sri Chairman has been pleated to direct (italicised by us) that the Secretary to the U. P. Legislature shall subject to the overall control of the Speaker and the Chairman, exercise the powers of a Head of the Department in respect of the Legislative Council and Legislative Assembly Secretariats. TI.is post will be common to both the Houses of the State Legislature. (Italicised by us)". In his letter Sri J.K. Tandon has conveyed the decision or orders of the Governor. In opinion a paragraph contained in Shri J.K. Tandon's letter are in the nature of Rules within the meaning of Article 187 (3) of the Constitution. 9. Admittedly, the State Legislature has passed no rules up-to- date 10. On the basis of what we have said above we conclude : (1) That the Head of the Department of the Legislative Council Secretariat and the Legislative Assembly Secretariat is the Secretariat Legislature and not the Speaker and the Chairman ; (2) That in fact, the petitioner's appointment as Superintendent, Legislative Council Secretariat was made by the Secretary Legislature and not by the Chairman and that he was confirmed on that post by the Secretary Legislature and not by the Chairman ; and (3) That ever-since the post of Superintendent Legislative Council was created in 1954 the successive appointments to the post of Superintendent Legislative Council were made by the Secretary Legislature and not by the Chairman. 11. Under Fundamental Rule 56, it is the appointing authority who may give the notice of retirement to the Government servant concerned on his attaining the age of 55 years. The Chairman or the Speaker may be superior in rank to the Secretary Legislature and they certainly are much higher officers. 11. Under Fundamental Rule 56, it is the appointing authority who may give the notice of retirement to the Government servant concerned on his attaining the age of 55 years. The Chairman or the Speaker may be superior in rank to the Secretary Legislature and they certainly are much higher officers. But, the fact remains that the appointing authority of the petitioner was the Secretary Legislature and not the Chairman. A rule giving the power of compulsory retirement of a public servant before he attains the age of superannuation must be strictly construed. When the power has been given only to the appointing authority it cannot be exercised by anyone else on the ground that he is superior in status or is the superior officer of the appointing authority. It is well settled that if a thing is required to be done in a particular manner it must be done in that manner alone. Inasmuch as Fundamental Rule 56 provides that it is the appointing authority alone which can terminate the services of a Government servant by means of a notice on his attaining the age of 55 years, there is n scope for the argument that he superior authority (the Chairman in the instant case) can also issue that notice. For the reasons mentioned above, we are of opinion that the first submission of Sri S.D. Misra, learned counsel for the petitioner, is well-founded. 12. In view of this finding, it is really not necessary to go into the question of the alleged mala fides of Sri Darbari Lal Sharma, the then Chairman of the U. P. Legislative Council. One of the annexures to the petition is a copy of the character roll of the petitioner and it has not been seriously disputed that the entries in it are of an outstanding nature Normally, such an officer should have been retained in service untill he attained the age of 58 years. It is also true that the Secretary Legislature supported his case strongly but, notwithstanding the excellent entries in favour of the petitioner and notwithstanding the encomiums that were showered by the Secretary Legislature upon him, the then Chairman Sri Darbari Lal Sharma. It is also true that the Secretary Legislature supported his case strongly but, notwithstanding the excellent entries in favour of the petitioner and notwithstanding the encomiums that were showered by the Secretary Legislature upon him, the then Chairman Sri Darbari Lal Sharma. decided to terminate the petitioner's service by means of the impugned notice, Sri Darbari Lal Sharma hac, however, denied in a counter affidavit sworn by himself that he was act updated by any motive of helping any one in retiring the petitioner ti 'm the post of Superintendent. We have no material on the basis of which we can affirmatively hold that what be has stated is not correct. Therefore, extraordinary as it appears that public servant of the petitioner's merit was made to compulsorily retire, we cannot on the basis of the material on record, record a definite finding of malafides of Sti Darbari Lal Sharma. As we have said earlier, it is really not necessary to go at any length into this question because on the basis of our decision in respect of the first submission of Sri S D. Misra the petition must succeed. 13. With regard to the third submission, it is difficult to agree that the petitioner has actually established a case of a discrimination. The persons about whom he complaints were not appointed by the Chairman of the Legislative Council but by the Governor. Under these circumstances we are not prepared to hold that the petitioner was discriminated against any one. 14. In view of our findings on the first submission of Sri S.D. Misra we allow this writ petition, quash the notice dated 9-11-1967 issued by Sri Darbari Lal Sharma, the then Chairman of the Legislative Council U.P. add issue a mandamus directing the respondent to treat the petitioner as in Government service as Superintendent of the Legislative Council Secretariat. We are informed that no permanent arrangement has been made on that post. The petitioner shall receive his costs from the respondents.