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1984 DIGILAW 123 (CAL)

Mahananda Banerjee v. State of West Bengal

1984-04-04

AMITABHA DUTTA

body1984
ORDER In this writ petition the petitioner has challenged the Notification No. 134-PA dated 22.5.74 and Notification No. 135-PA dated 22.5.74 both issued by Home (Parliamentary Affairs) Department, Government of West Bengal in so far as they relate to methods of recruitment and qualifications for promotion to the post of Deputy Secretary in the Secretariat of the West Bengal Legislative Assembly. The petitioner has prayer for various reliefs. 2. The petitioner is an Assistant Secretary in the Secretariat of the West Bengal Legislative Assembly. As no law as contemplated in Article 187(2) of the Constitution of India has been mode by the State Legislature, the Governor after consultation with the Speaker of the Legislative Assembly framed rules regarding the recruitment and conditions of Service of persons appointed to the secretarial staff of the Assembly, called the West Bengal Legislative Assembly Secretariat Rules, 1953 (hereinafter called the Recruitment Rules 1953). A copy of these Rules is annexure 'A' to the writ petition. 3. In exercise of powers conferred by rule 7(1)(c) of the Recruitment Rules 1953 the Governor after consultation with the Speaker determined the methods of recruitment and qualifications for filling the posts of Secretary, Deputy Secretary, Assistant Secretary and other posts of officers of the Assembly Secretariat which are included in West Bengal General Service, by a Notification No. 437 AR dated 24.2.1955. A copy of this notification is annexure 'B' to the writ petition. 4. By the impugned Notification No. 134 PA dated 22.5.74 (annexure 'C' to the writ petition) tile Governor in exercise of the powers conferred by Article 197(3) of the Constitution after consultation with the Speaker made certain amendments to the Recruitment Rules of 1953. By amending rule 3 the Speaker has been given power to select anyone from among his Personal Assistants or Stenographers or Upper Division or Lower Division Assistants of the Assembly Secretariat to act as his Private Secretary. By amending rule 7(1), the requirement to consult with the Public Service Commission under Article 320(3) of the Constitution subject to Regulations framed under proviso to that clause has been abolished. By amending rule 7(1), the requirement to consult with the Public Service Commission under Article 320(3) of the Constitution subject to Regulations framed under proviso to that clause has been abolished. By amending rule 8(2), the words “method of recruitment” were omitted and such amendment relates to the recruitment of subordinate and inferior staff of the Assembly Secretariat the posts of which are mentioned under Appendix III of the Recruitment Rules 1953 while the petitioner belong to the category of officers the posts of which are mentioned in Column I of Appendix II of the said Rules. 5. The grounds of challenge of Notification No. 134-PA dated 22.5.74 are that the amendments are violative of Article 320(3) of the Constitution as explicit provision has not been made in the West Bengal Public Service Commission (Consultation by Governor) Regulations 1955 framed under proviso to Clause (3) of Article 320 of the Constitution to exempt the posts of the Assembly Secretariat from the purview of the said clause; that the amendments have not been made in consultation with the Public Service Commission of West Bengal; that Article 320(5) has not been complied with; and that the method of recruitment of subordinate and inferior staff of the Assembly Secretariat has been made dependent on the whims of the appointing authority without any guide line. 6. But after hearing the submissions made by Mr. Trivedi appearing on behalf of the petitioner who has reiterated the aforesaid grounds and Mr. Banerjee appearing for the respondents No. 1, State of West Bengal which alone has contested the writ petition although no return has been filed thereto, I find that the grounds of challenged cannot succeed. It cannot be disputed that the Governor has power under clause (3) of Article 187 of the Constitution to amend the Requirement Rules of 1953 in the matter laid down in the said clause so long as such amendment does not contravene any law made by the State Legislature or the Parliament or affect a vested right of any person. It cannot be disputed that the Governor has power under clause (3) of Article 187 of the Constitution to amend the Requirement Rules of 1953 in the matter laid down in the said clause so long as such amendment does not contravene any law made by the State Legislature or the Parliament or affect a vested right of any person. It appears that under rule 6(1) of the Recruitment Rules of 1953 all posts specified in the first column of Appendix II of the Rules which are posts of officers in the Assembly Secretariat are included in the West Bengal General Service Rule 5 of the West Bengal Public Service Commission (Consultation by Governor) Regulations 1955 provides that it shall not be necessary to consult with the Commission with respect to the filling of a permanent post in the West Bengal General Service when such posts are, subject to the provisions of the Recruitment Rules, filled up (a) by promotion of person having lien on a post in that service subordinate to such post; and (b) by promotion or transfer of a person having lien on a regularly constituted State service. Thus under the said Regulations made under the proviso to Article 320(3) of the Constitution the post of officers of the Assembly Secretariat including the post of Deputy Secretary with which the petitioner is directly concerned have been excluded from the purview of the consultation with the State Public Service Commission in regard to matters and principles referred to in sub clauses (a) and (b) of the said clause. Moreover it his been held by the Supreme Court in the case of State of U.P. v. Manbodhan Lal Srivastava that Chapter II of Part XIV of the Constitution, containing Article 320 does not in term confer any rights or privileges on an individual public servant nor any constitutional guarantee of the nature contained in Chapter 1 of that part particularly Article 311. It has been observed that requirement of the consultation with the Commission does not extend to make the advice of the Commission on those matters binding on the Government. The reported case related to Article 320(3)(c) and the Court has held that the provisions of the said sub-clause are not mandatory and non-compliance with those provisions does not afford a cause of action to the respondent in a court of law. The reported case related to Article 320(3)(c) and the Court has held that the provisions of the said sub-clause are not mandatory and non-compliance with those provisions does not afford a cause of action to the respondent in a court of law. In the case of Tohiram v. Prithi Singh AIR 1971 P & H 297 the Full Bench of the Punjab and Hariyana High Court has held that on question of requirement on consultation or rendering advice by Public Service Commission there is no distinction between various sub-clauses (a) to (e) in Article 320(3) of the Constitution and mere incorporation of requirement of Article 320(3)(b) in a statutory rule does not make it any more mandatory. In view of the aforesaid decisions with which I respectfully agree I find that there is no question of the provisions of Article 320(3) of the Constitution in this case on the part of the Governor in making the amendments to the Recruitment Rules of 1953 by the impugned Notification No 134 PA dated 22.5.74 firstly because so far as the petitioner is concerned the requirement for consultation with the Public Service Commission for filling the Deputy Secretary has been dispensed with by the Regulations of 1955 made under the proviso to Article 320 (3) of the Constitution and the amendment of rule 7(1) of the Recruitment Rules of 1953 was made to omit from the said sub-rule the provision which became inconsistent with Regulation 5(1) of the said Regulations. It cannot be said that any legal right of the petitioner has been affected by the amendment. So far as the other two amendments are concerned in rule 3 and rule 8(2) of the Recruitment Rules of 1953 they relate different categories of staff to which the petitioner does not belong and with which the petitioner is not concerned. The Speaker has been given the power to select his Private Secretary from persons holding certain posts. The fact that it is capable of abuse is not a ground for quashing it. If in any particular case the selecting authority abuses its power in violation of Article 14 of the Constitution that may be a case for setting aside the selection. The fact that it is capable of abuse is not a ground for quashing it. If in any particular case the selecting authority abuses its power in violation of Article 14 of the Constitution that may be a case for setting aside the selection. The Governor's power to change the method of recruitment of the subordinate and inferior staff of the Assembly Secretariat by amending rule 8(2) of the Recruitment Rules of 1953 in view of provisions of Article 187(3) of the Constitution cannot be successfully challenged. The decision in the case of Jaisinghani v. Union of India AIR 1967 SC 142 in which the Supreme Court his observed that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based his no application to the present case as the said observation was made by the Supreme Court in connection with the promotion of departmental officers of the Income Tax Department made in contravention of the quota rule by deviating from it in arbitrary manner. 7. I therefore, find that all the grounds raised on behalf of the petitioner to challenge notification in question must fail. 8. By the impugned Notification No. 135-PA dated 22.5.74 (annexure 'D' to the writ petition the Governor in exercise of the power conferred by S 7(1)(c) of the Recruitment Rules 1953 and in consultation with the Speaker amended the Notification No. 437-AR dated 24.2.1955 (annexure 'B' to the writ petition) relating to qualifications for filling up the posts of Registrar, Assistant Secretary and Deputy Secretary in the Assembly Secretariat. So far as the post of Deputy Secretary is concerned the amendment provided for filling up that post by transfer from WBCS (Executive of Judicial) or from the West Bengal General Service provided that the candidate concerned holds a degree in law in addition to the existing method of recruitment by selection or by promotion from the post of Assistant Secretary preferably holding a degree in law. The grounds of challenge of the said Notification are that the chance of promotion of the petitioner has been reduced by enlarging the field of recruitment and the conditions of service of the petitioner have been consequently changed to his detriment without giving him opportunity of being heard in accordance with the principles of natural justice that the amendment is ultra vires Article 187 of the Constitution that the method of recruitment mentioned in rule 5 and conditions of service mentioned in rule 7(2) of the Recruitment Rules cannot be changed by purported amendments in exercise of powers conferred by rule 7(1)(c) of the said Rules which relates to determination of qualifications for filling up such posts by the Governor in consultation with the Speaker and that the independence of the legislature has been affected by bringing officers from the executive service who will be under dual control of the parent department and the Speaker. It is further alleged that the appointment of the respondent No. 6 as Deputy Secretary after the impugned amendment are bad in law. 9. Mr. Trivedi the learned advocate for the petitioner has urged the aforesaid points, in support of his submission that the Notification No. 135-PA dated 22.5.74 in question should be struck down. On the other hand Mr. Banerji appearing for the respondent No. 1 has contended that chance of promotion is not a fundamental or legal right the existence of which is the foundation of relief under Article 226 of the Constitution. In this connection reference has been made to the case of State of Orissa v. Ram Chandra AIR 1954 SC 685 in which it has been held that the existence of a legal right is the foundation of a petition under Article 226 of the Constitution. In my view, the point raised by Mr. Banerji is one of substance and should be accepted. It has been held in Ram Chandra Shankar Deodhar v. State of Maharashtra AIR 1974 S.C. 249 that a chance of promotion is not although right to be considered for promotion is, a condition of service. So in the present case even if the impugned amendment has to a certain extent reduced the chance or prospect of promotion of the petitioner to the post of Deputy Secretary, it cannot be said that any legal right or condition of service of the petitioner has been affected. So in the present case even if the impugned amendment has to a certain extent reduced the chance or prospect of promotion of the petitioner to the post of Deputy Secretary, it cannot be said that any legal right or condition of service of the petitioner has been affected. No employee can have legal right of promotion to a higher post although he has right to be considered for promotion to a post according to the rules of recruitment. As long as that right is not taken away by amendment of the Recruitment Rules it cannot be said that his condition of service has been changed to his detriment. Moreover Government can alter term, and conditions of service unilaterally (See State of J & K v T.N. Khosa AIR 1974 SC 1 at p 3 (para 22). In my view, the Governor had power under Article 187(3) of the Constitution to make the amendment in question which is quite consistent with the said provisions and not in violation thereof as the determining qualifications for and method of recruitment is one facet of regulating the recruitment. In order to make the impugned notification powers conferred by rule 7(1)(c) of the Recruitment Rules 1953 have been invoked as similar powers had been invoked in order to make the notification No. 437AR dated 24.2.1955 for laying down qualifications and method of recruitment in respect of the concerned posts which were altered to a certain extent by the impugned amendments introduced on 22nd May 1974. No doubt conditions of service and method of recruitment have been referred to in rule 5 of the Recruitment Rules but all the relevant powers exercised by the Governor flow from Article 187(3) of the Constitution and any inadequate reference to such powers in a particular notification regulating recruitment and/or condition of service does not render the notification invalid. It has been already held that the provisions of Article 320(3) of the Constitution are not mandatory and do not confer any right on an individual public servant enforceable by a writ petition under Article 226 of the Constitution. The requirement as to laying before House of Legislature under Article 320(5) of the Constitution is also directory notwithstanding the word "shall" inasmuch as no consequence for non-compliance with the requirement has been laid down in the said Article. The requirement as to laying before House of Legislature under Article 320(5) of the Constitution is also directory notwithstanding the word "shall" inasmuch as no consequence for non-compliance with the requirement has been laid down in the said Article. So the regulations made under the proviso to clause (3) of Article 320 are not rendered invalid even if they were not laid before the legislature of the State as required by clause (5). The question whether the independence of the legislature will be affected by bringing officers from the executive service to the Assembly Secretariat by transfer is a matter of public policy which is not justiciable. In the writ petition the petitioner has impleaded the respondent no. 5 who had been appointed to the post of Secretary in the Assembly Secretariat on 3.1.1972 long before the impugned notifications of 1974 and had retired before the presentation of the instant writ petition. The respondent No. 6 had been appointed to the post of Deputy Secretary in the Assembly Secretariat in 1971 long before the impugned notifications and was thereafter given officiating promotion to the post of Secretary. It appears that the petitioner has cast the net of challenge very wide and alleged in paragraph 38 of the writ petition that many appointments in the Assembly Secretariat are illegal and invalid and has prayed for review thereof without making the persons likely to be affected by such review if made parties to the writ petition. The grounds of challenge which have no bearing on the petitioner's promotion to the post of Deputy Secretary arid which are likely to affect persons who have not been impleaded must be thrown out in limine. Moreover it has been rightly contended by Mr. Banerji on behalf of the respondent No. 1 that the writ petition is not maintainable on account of inexcusable delay in presenting it in December 1980 without any explanation as to the reasons for not presenting it within about 12 months after t he petitioner's earlier writ petition being Civil Rule No. 4201(W) of 1974 referred to in paragraph 39 of the instant writ petition had been discharged on 28.11.79. In this connection reference has been made to the decision in the case of Ajit Singh v. State of Punjab AIR 1967 SC 857 (at page 859) in which it has been held where no adequate explanation for delay has been given and no manifest injustice has been caused to the petitioner, he has been rightly held to be guilty of laches disentitling him to relief under Article 226 of the Constitution. In the present case I find that no manifest injustice has been done to the petitioner by the impugned notifications and he has not explained the delay in filing the present writ petition, He is guilty of laches for which he is not entitled to the reliefs claimed, apart from the other grounds on which this writ petition must fail. In the result, the writ petition fails and the Rule is discharged without any order for costs. Rule discharged.