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Madhya Pradesh High Court · body

2012 DIGILAW 120 (MP)

Rohan Singh Yadav v. State of M. P.

2012-01-27

G.D.SAXENA, S.K.GANGELE

body2012
JUDGMENT Gangele, J. -- 1. This writ appeal has been filed by the appellant against the order dated 21.9.2011, passed by the learned Single Judge in Writ Petition No.1587/2004 (s). 2. The appellant was appointed vide order dated 16.6.1988 as Labour Officer in pursuance to the selection conducted by the M.P. Public Service Commission. He was promoted to the post of Assistant Labour Commissioner and joined on the aforesaid post on 14.6.1996. In the gradation list, he was senior to the respondent No.3. The respondent No.3 was promoted to the post of Deputy Labour Commissioner vide order dated 1.1.2004. The appellant challenged the aforesaid order of promotion in the writ petition on the ground that the respondent No.3 was not eligible to be considered for promotion because he had not fulfilled the criteria of minimum period of service as Assistant Labour Commissioner for the purpose of promotion to the post of Deputy Labour Commissioner. Learned Single Judge dismissed the writ petition on the ground that the criteria for promotion to the post of Deputy Labour Commissioner was merit-cum-seniority and because the respondent No.3 was more meritorious, hence, he had rightly been promoted. In regard to minimum officiation on the post, learned Single Judge has held that in accordance with rule 20 of the Madhya Pradesh Labour (Gazetted) Service Recruitment Rules, 1985 (hereinafter referred to as ‘the Rules, 1985’), the Governor has a right to relax the condition and the condition of minimum officiation has been relaxed in the case of the respondent No.3, hence, the order of promotion of the respondent No.3 is in accordance with law. 3. Learned counsel appearing on behalf of the appellant has contended that there is no order in regard to relaxation of minimum officiation period as required under the Rules, 1985, hence, the order passed by the learned Single Judge is contrary to law and the promotion of the respondent No.3 was also contrary to the Recruitment Rules, 1985. 4. Contrary to this, learned counsel for the respondent No.3 has contended that the order passed by the learned Single Judge is in accordance with law and the relaxation has been granted in the case of respondent No.3 by the competent authority. 5. The promotion to the post of Deputy Labour Commissioner from the post of Assistant Labour Commissioner has been governed by the Recruitment Rules, 1985. 5. The promotion to the post of Deputy Labour Commissioner from the post of Assistant Labour Commissioner has been governed by the Recruitment Rules, 1985. Rule 14 of the Rules 1985 prescribes conditions of eligibility for promotion/transfer. The relevant rule is as under : “14. Conditions of eligibility for promotion/transfer. -- (1) Subject to the provisions of sub-rule (2) the committee shall consider the cases of all persons who, on the 1st day of January of that year had completed such number of years of service (whether officiating or substantively) on the posts from which promotion is to be made or on any other post or posts declared by the Government equivalent thereto as specified in column (3) of Scheule IV and are within the zone of consideration in accordance with the provisions of sub-rule (2) : Provided that the services of the released officers of Emergency Commission and Short Service Commissions, after their appointment in the service, shall be counted from the date from which they have been appointed in service in accordance with the General Administration Department MemoNo.2266/1987-I(3)-67, dated the 21st October, 1967 : Provided, further that no junior person shall be considered for select grade/promotion in preference to the person senior to him on the basis of his completing the prescribed period of service under this rule. (2) The zone of consideration for selection shall ordinarily be limited to seven times the number of officers to be included in the select list, in respect of posts to be filled on the basis of merit-cum-seniority and five times the number of officers to be included in the selection list in respect of posts to be filled on the basis of seniority-cum-merit : Provided that if suitable officers are not available in the zone so determined in the required number, the zone may be enlarged to the extent considered necessary by the Committee by mentioning the reasons in writing therefor.” 6. Schedule IV of rule 14 prescribes minimum experience for eligibility and for the purpose of promotion to the post of Deputy Labour Commissioner from the post of Assistant Labour Commissioner, five years minimum experience is required as Assistant Labour Commissioner. Schedule IV of rule 14 prescribes minimum experience for eligibility and for the purpose of promotion to the post of Deputy Labour Commissioner from the post of Assistant Labour Commissioner, five years minimum experience is required as Assistant Labour Commissioner. Rule 14 of the Rules 1985 further says that an employee has to complete minimum number of years of service whether officiating or substantively on the post from which promotion is to be made on the first date of January of that year. 7. In the present case, the Departmental Promotion Committee was convened on 30.12.2002. The respondent No.3 was promoted as Assistant Labour Commissioner on 30.12.1997. Admittedly, he had not completed minimum five years of service as Assistant Labour Commissioner on 1st January, 2002 as required under the rule 14 of Rules, 1985. 8. Rule 20 of the Recruitment Rules, 1985 prescribed relaxation which is as under : “20. Relaxation. -- Nothing contained in these Rules shall be construed to limit or abridge the powers of the Governor to deal with the case of any person, to whom these Rules apply, in such manner as may appear to him to be just and equitable. Provided that the case shall not be dealt with in any manner less favourable to him than that provided in these Rules. (a) Saving. -- Nothing contained in these rules shall affect reservations and other conditions required to be provided for the Scheduled Caste and Scheduled Tribes in accordance with the orders issued by the State Government from time to time in this regard.” From the aforesaid rule, it is clear that the Governor can relax the conditions of the rule. 9. The question for consideration in this case is whether the Governor has relaxed the conditions of rule in the present case. To substantiate the aforesaid point, the respondents-State filed the record of the case and as per the record the matter was placed before the Additional Secretary, General Administration Department and it has been mentioned in the noting that there was necessity to fill up all the four posts, hence, one year relaxation in regard to eligibility of five years officiating service could be granted to the respondent No.3 and one Smt. S.C. Mishra. However, there is no order of the counsel of Ministers or Minister in this regard. However, there is no order of the counsel of Ministers or Minister in this regard. Even though, no order has been passed to this effect by the competent authority in the name of Governor as required under Article 166(2) of the Constitution of India. Article 166(2) of the Constitution of India in regard to conduct of Government business is as under : “Article 166(2). Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.” 10. The Hon’ble Supreme Court in the case of State of Madhya Pradesh v. Dr. Yashwant Trimbak, reported in 1996 JLJ 322 (SC)= AIR 1996 SC 765 , has considered the Article 166(2) of the Constitution of India and the requirement of grant of sanction by the Governor in the context of rule 9(2)(b)(i) of the M.P. Civil Services Pension Rules, 1976 and held as under : “13. This being the position and the order initiating the departmental proceeding having been signed by the under Secretary to the Government by order of the Governor, the same is immune from attack on the ground that it is not an order executed by the Governor as provided under Article 166(2) of the Constitution. As such the Tribunal was wholly incompetent to examine the legality to the same. In fact Article 166(2) of the Constitution has not been looked into at all by the Tribunal. In our opinion the Tribunal was wholly in error in quashing the order on the ground that the Governor has not executed the same. In view of our conclusion on the first question though the appeal is bound to succeed, but we think it proper to examine the second question also. 14. The rule in question no doubt provides that departmental proceedings if not instituted while the Government servant was in service whether before his retirement or during his re-employment shall not be instituted save with the sanction of the Governor. 14. The rule in question no doubt provides that departmental proceedings if not instituted while the Government servant was in service whether before his retirement or during his re-employment shall not be instituted save with the sanction of the Governor. The question that arises for consideration is whether it requires the sanction of the Governor himself of the Council of Ministers in whose favour the Governor under the Rules of Business has allocated the matter, can also sanction. It is undisputed that under Article 166(3) of the Constitution the Governor has made rule for convenient transaction of the business of the Government and the question of sanction to prosecute in the case in hand was dealt with by the Council of Ministers in accordance with the rule of Business. Under Article 154 of the Constitution the executive power of the State vests in the Governor and is exercised by him either directly or through officers subordinate to him in accordance with the Constitution. The expression ‘executive power’ is wide enough to connote the residue of the governmental function that remain after the legislative and judicial functions are taken away. 15. Under Article 163(1) of the Constitution excepting functions required by the Constitution to be exercised by the Governor in his discretion, the Governor acts on the aid and advice of the Council of Ministers. This Court in the case of Shamsher Singh v. State of Punjab [ AIR 1974 SC 2192 ], had indicated that any function vested in the Governor, whether executive, legislative or quasi-judicial in nature and whether vested by the Constitution or by a statute be delegated by Rules of Business unless the contrary is clearly provided for by such constitutional or statutory provision. The Court further held (para 48): “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 on 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 on 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. Whenever the Constitution requires the satisfaction of the President or the Governor for any 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. The decision of any Minister or Officer under Rules of Business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of minister or officer under the rules of business is the decision of the President or the Governor.” 16. After referring to the several previous authorities this Court further held (para 57 of AIR) : “For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of State in all matters which vest in the executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive function personally.” 17. The order of sanction for prosecution of a retired Government servant is undoubtedly an executive action of the Government. A Governor in exercise of his power under Article 166(3) of the Constitution may allocate all his functions to different Ministers by framing rules of business except those which the Governor is required by the Constitution to exercise his own discretion. The expression “business of the Government of the State” in Article 166(3) of the Constitution, comprises of functions which the Governor is though exercise with the aid and advice of the Council of Ministers including those which he is empowered to exercise on his subjective satisfaction and including statutory functions of the State Government. The expression “business of the Government of the State” in Article 166(3) of the Constitution, comprises of functions which the Governor is though exercise with the aid and advice of the Council of Ministers including those which he is empowered to exercise on his subjective satisfaction and including statutory functions of the State Government. The Court has held in Shamrao v. State of Maharashtra [ (1964)6 SCR 446 : AIR 1964 SC 1128 ], that even the functions and duties which are vested in a State Government by a statute may be allocated to Ministers by the Rules of Business framed under Article 166(3) of the Constitution. In State of Bihar v. Rani Sonabati Kumari [ (1961)1 SCR 788 : AIR 1961 SC 221 ], where power of issuing notification under section 3(1) of the Bihar Land Reforms Act, 1950 has been conferred on the Governor of Bihar, this Court held (para 40 of AIR) : “Section 3(1) of the Act confers the power of issuing notifications under it not on any officer but on the State Government as such though the exercise of that power would be governed by the rule of business framed by the Governor under Article 166(3) of the Constitution.” 18. Therefore, excepting the matters with respect to which the Governor is required by or under the Constitution to act in his discretion, the personal satisfaction of the Governor is not required and any function may be allocated to Minister. 19. Mr. Jain’s contention is solely based on the ground that in the rule itself both the expressions ‘Governor’ and ‘Government’ have been used and therefore the expression ‘sanction of the Governor’ in rule 9(2)(b)(i) would mean the personal sanction of the Governor. We are unable to accept this contention. The power to sanction is nothing but an executive action of the Government provided under the Rules. This is not a matter with respect to which the Governor is required under the Constitution to act in his discretion. We are unable to accept this contention. The power to sanction is nothing but an executive action of the Government provided under the Rules. This is not a matter with respect to which the Governor is required under the Constitution to act in his discretion. In this view of the matter when the Governor has framed rules of business under Article 166(3) of the Constitution allocating his functions and it is the Council of Ministers which has taken the decision to sanction prosecution of the respondent we see no legal infirmity in the same.The Tribunal erred in law in coming to the conclusion that the sanction required under the rule is a sanction of the Governor.” 11. From the aforesaid judgment of the Hon’ble Supreme Court, it is clear that if an order is passed under Article 166(2) of the Constitution of India, that cannot be assailed and the executive work of the Governor may be allocated to Ministers and the personal saitsfaction of the Governor is not required. However, in the present case, the ingredients of the principle of law enunciated by the Hon’ble Supreme Court have not been made out. No order has been passed in accordance with the Article 166(2) of the Constitution of India in regard to relaxation of minimum service conditions, neither there is any order in this regard of Council of Ministers. 12. Rule specifically gives power to the Governor and even though it is to be held that in the context of rule 20 of the Rules 1985, the personal satisfaction of the Governor is not necessary then also the requirement of Article 166(2) of the Constitution of India has to be fulfilled to uphold the order because the rule 20 of Rules 1985 gives power of relaxation to the Governor. Learned Single Judge has not considered the aforesaid aspects in the order under challenge. Hence, consideration of the case of the respondent No.3 for promotion by the DPC and his promotion are contrary to law. 13. Consequently, the appeal filed by the appellant is allowed.The order passed by the learned Single Judge is hereby set aside. The writ petition filed by the appellant before the writ Court is hereby allowed.The promotion of the respondent No.3 vide order dated 1.1.2004 is hereby quashed. The respondents-State is directed to act in accordance with law and consider the case of the appellant for promotion. The writ petition filed by the appellant before the writ Court is hereby allowed.The promotion of the respondent No.3 vide order dated 1.1.2004 is hereby quashed. The respondents-State is directed to act in accordance with law and consider the case of the appellant for promotion. If the appellant be found eligible, he be given promotion in accordance with law. However, looking to the facts of the case, he could not be entitled arrears of salary on the principle of ‘No Work No Pay’ but he would be entitled for other benefits treating his service continuous. 14. No order as to costs. .............