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Allahabad High Court · body

1987 DIGILAW 10 (ALL)

Suresh Chandra Tewari v. U. P. Public Service Commission

1987-01-02

B.D.AGARWAL, V.N.KHARE

body1987
JUDGMENT B.D. Agarwal, J. - The petitioner was appointed Upper Division Clerk in the office of the U.P. Public Service Commission at Allahabad in the year 1963 and confirmed in 1971. In the year 1978 he was promoted as Section Officer. On July 18, 1981 he was placed under suspension upon certain charges; the departmental proceedings were initiated. As a result of the enquiry, the petitioner was reverted to the rank of the Upper Division Assistant by order dated April 24, 1982 and by another order passed the same day he was dismissed from service. Against these the petitioner preferred an appeal to the State Government which called for the record and upon scrutiny thereof set aside the order of dismissal. The appellate order made by the State Government is dated August 30, 1986. The stand taken by the Public Service Commission to the effect that the State Government was not competent to make a review of the matter under the provisions of Rule 69 of the Civil Services (Classification, Control and Appeal) Rules was negatived. It was observed that in the course of the enquiry the petitioner had not been given opportunity to cross examine the witnesses produced for the Commission; it was pointed further that the petitioner did not get reasonable opportunity to produce evidence from his side and that his application thus supported by medical certificate for time was wrongly dealt with. There was, in the opinion of the State Government, no reasonable opportunity of being heard given to the petitioner as contemplated under Article 311(2) of the Constitution. The order of dismissal was consequently set aside, as mentioned above, and it was directed that the Commission shall enquire into the matter again in accordance with law and that till then the petitioner shall be reinstated as the Upper Division Assistant and also that the orders be passed for the payment of salary to him for the period commencing on the date of dismissal till the reinstatement. The petitioner applied to the Commission on September 3, 1986 for being permitted to join. He sought implementation of the order made by the State Government which, however, has been declined by the Commission. The petitioner has thereupon approached this Court under Article 226 of the Constitution seeking a writ of direction in the nature of mandamus requiring the respondents Nos. He sought implementation of the order made by the State Government which, however, has been declined by the Commission. The petitioner has thereupon approached this Court under Article 226 of the Constitution seeking a writ of direction in the nature of mandamus requiring the respondents Nos. 1 to 3 to allow the petitioner to join as Upper Division Assistant in pursuance of the order of the State Government dated August 30, 1986 and to pay him salary with other benefits attached thereto. 2. We have heard Sri R.R.K. Trivedi, learned counsel for the petitioner and Sri Vinod Misra, Standing Counsel appearing for the Public Service Commission. 3. Sri Vinod Misra urged that the Commission is not subordinate to the State Government and, therefore, the State Government could not have the power to nullify the order of dismissal made by the Commission against the petitioner or to direct the Commission to reinstate the petitioner as Upper Division Assistant. In our view the submission is misdirected, There is no question as such of the Commission being placed under subordination to the State Government in this respect; in the correct perspective the question raised is of mere enforcement of statutory regulations framed in this behalf. Article 318(b) of the Constitution confers power upon the Governor to make regulations as to conditions of service of members and staff of the Commission. It is provided, inter alia that the Governor may make provision with respect to the number of members of the staff of the Commission and their conditions of service. It may not be open to doubt that conditions of service of members of the staff would include the right and the forum for appeal by an aggrieved member of the staff against the order passed in disciplinary proceedings. In exercise of powers under Section 265(2) of the Government of India Act, 1935 (Corresponding to Article 318 of the Constitution), the Governor framed the U.P. Public Service Commission (Conditions of Service) Regulations. Chapter III of those Regulations deals with the composition of the staff of the Commission. Part II lays down the conditions of service. Regulation 20 as amended from time to time provides that appeals against the orders of the Commission shall be made to the Governor. Reference may also be made to Regulation 28 of the U.P. Public Service Commission Staff Regulations, 1942 which lays down:-- 28. Part II lays down the conditions of service. Regulation 20 as amended from time to time provides that appeals against the orders of the Commission shall be made to the Governor. Reference may also be made to Regulation 28 of the U.P. Public Service Commission Staff Regulations, 1942 which lays down:-- 28. Regulation of pay, leave allowance, pension and other conditions of service:-- Except as provided in these regulations or in any special declaration or order made by the Governor, all matters relating to the pay, allowances, pension, gratuity, leave, retirement and other conditions of service of the persons appointed to the staff shall be regulated by the rules, declarations and orders applicable generally from time to time to servants of the Uttar Pradesh Government in so far as they are not inconsistent with any provisions expressly made in these regulations or in the Uttar Pradesh Public Service Commission (Condition of Service) Regulations. 4. Rule 69 of the Civil Service (Classification, Control and Appeal) Rules is to the effect that the State Government may, of its own motion or otherwise, call for the record of any case decided by an authority subordinate to it in the exercise of any power conferred on such authority by these rules, and, inter alia, confirm, modify or reverse the order passed by such authority; or direct that a further enquiry be held in the case. Rule 69-A specifies that whenever a petition is preferred under rule 69, it shall contain all material statements and arguments relied on by the petitioner. The provisions made in Rule 69 has to be read along side with Regulation 28 of the 1942 Regulations, referred to above. For all practical purpose, in our words, the provisions made in Rule 69/69-A has been adopted in relation to Members of the Staff of the Commission in pursuance of the statutory regulations framed under Article 318 of the Constitution, even though the Commission is as such not an authority subordinate to the State Government in the general sense. The vires of the Regulation 1942 or the U.P. Public Service Commission (Conditions of Service) Regulations existing in this respect is not under challenge before us. 5. The vires of the Regulation 1942 or the U.P. Public Service Commission (Conditions of Service) Regulations existing in this respect is not under challenge before us. 5. The other submission made by Sri Vinod Misra is that in terms of paragraph 20 of the U.P. Public Service Commission (Conditions of Service) Regulations appeals may lie to the Governor whereas the provision contained in rule 69 of the Civil Service (Classification Control and Appeal) Rules envisages a review by the State Government and hence the two are not consistent with each other. The argument advanced is that the appeal filed by the petitioner in the present case having been addressed to the Chief Minister, it may not be treated as having been made to the Governor within meaning of paragraph 20 of the Regulations, aforementioned. We are unable to find merit in this contention. The State Government means in the context the Governor vide Section 3(60) of the General Clauses Act. The expressions are interchangeable; the reference to Governor in regulation 20 should be taken to mean the State Government and vice versa. This being not a function required by the Constitution to be exercised by the Governor in his discretion, he has to act with the aid and advice of the Council of Ministers vide Article 163(1) of the Constitution. The law is settled that the satisfaction has to be not the personal satisfaction of the Governor but the satisfaction of the Governor in the constitutional sense. In Samsher Singh v. State of Punjab and another, (1974) 2 S.C.C. 831 at p. 847 : (1950-80) 11 S.C.L.J. 161 it was laid down: The President as well as the Governor is the constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution of the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution of the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. 6. In our opinion, therefore, the reference to the Governor in Regulation 20 on the one hand and the State Government on the other hand Rule 69 is to be construed as meaning one and the same thing, namely, the Governor acting with the aid and advice of the Council of Ministers. Keeping in view Article 166(2) the order made by the State Government dated August 30, 1986 vide Annexure 'II' to the Writ petition, does not remain open to challenge on ground that it is not an order made or executed by the Governor. 7. A perusal of the order of the State Government shows that it called for the record relating to the disciplinary proceedings. It was found that reasonable opportunity of being heard was denied to the petitioner inasmuch as cross examination sought by him could not be had and the petitioner could neither give evidence from his side. Rule 69 empowers the State Government to reverse the order and also to direct a further enquiry as has been done in the present case. Under the proviso to Article 309 of the Constitution, it may be noticed, the Governor is given the power to make rules regulating the recruitment and the conditions of service of the persons appointed to services and posts referred therein. The provision contained in Rule 69 empowering the State Government to review an order made by disciplinary authority is correlated. Under the proviso to Article 309 of the Constitution, it may be noticed, the Governor is given the power to make rules regulating the recruitment and the conditions of service of the persons appointed to services and posts referred therein. The provision contained in Rule 69 empowering the State Government to review an order made by disciplinary authority is correlated. Thus to the conditions of service of the particular class of employees and by virtue of Regulation 28 of the 1942 Regulations in the absence of any inconsistency shown to exist, these extend as well in relation to members of the Staff of the Commission. 8. In the light of the discussions made above we have no doubt that the Commission is not justified in not giving effect to the order of the State Government dated 30th August, 1986. 9. The petition consequently succeeds and is allowed. We direct the respondents Nos. 1 to 3 to implement and act in conformity with the order of the State Government dated August 30, 1986, vide Annexure 'II' to the writ petition, without further delay. 10. Upon the pronouncement of the judgment Sri Vinod Misra prayed orally for leave to appeal to the Supreme Court. Proceeding as we do on settled principles, we do not think this case gives rise to a substantial question of law of general importance requiring decision of the Supreme Court. The Leave prayed for is refused.