Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 782 (MP)

K. K. Tamrakar v. State of M. P.

2014-07-08

ALOK VERMA, RAJENDRA MENON

body2014
Judgment Rajendra Menon, J.:- 1. This is an appeal under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005, calling in question tenability of an order dated 19.6.2014 passed by the learned Single Judge in W.P. No.8471/2014. 2. Appellant is substantively holding the post of Joint Director in the department of Public Health and Family Welfare. He has been suspended vide order dated 4.6.2014, challenging the suspension the Writ Petition was filed under Article 226 and 227 of the Constitution and the challenge having failed before the Writ Court, this appeal under the provisions of the Adhiniyam of 2005. 3. Appellant was promoted on the post of Joint Director based on a recommendation made by the Departmental Promotion Committee vide order dated 27.6.2012. He joined on the said post on 28.6.2012 and at the relevant point of time when the impugned action is said to have been taken, he was working as Incharge Regional Director in the office of Divisional Joint Director, Health Services, Sagar Division. For various act of commission and omission as are indicated in the charge sheet the departmental proceeding initiated against him, the appellant was placed under suspension vide order dated 4.6.2014 and the order of suspension was issued by the respondent No.2 the Health Commissioner in the Department of Public Health and Family Welfare. 4. Challenging the said suspension the writ petition in question W.P. 8471/2014 was filed and the main grounds of challenge was that the suspension by the Commissioner of Health is unsustainable as he is not authorized to nor empowered under law/rules to suspend the appellant. It was said that appellant is holding a Class I post in the cadre/ rank of Director in the Health Department and therefore, it is only the State Government who can suspend the appellant. The second ground canvassed was that the suspension is unwarranted and without application of mind, without any cogent reason and in a unjustified manner the suspension has been effected. Further contentions were advanced to the effect to say that under the Discipline and Appeal Rules, there is no provision for delegation of power to the Health Commissioner and therefore, the suspension by the Health Commissioner who had assumed the power of Disciplinary Authority by delegation is unsustainable. Further contentions were advanced to the effect to say that under the Discipline and Appeal Rules, there is no provision for delegation of power to the Health Commissioner and therefore, the suspension by the Health Commissioner who had assumed the power of Disciplinary Authority by delegation is unsustainable. The learned Single Judge in the writ petition having rejected all these contentions, the appellant challenges the same in this writ appeal. 5. Shri Kishore Shrivastava, learned Senior Counsel argued that the appellant was promoted as a Joint Director, he is the Incharge Regional Director and is now drawing salary in the pay band of Rs. 37,400-67,000/- (after grant of selection grade) which is equivalent to the pay scale of Additional Director and Director and therefore, it is only the State Government which can suspend the appellant and the power exercised by the Health Commissioner is unsustainable. He referred to the provisions of the Public Health and Family Welfare (Gazetted) Recruitment Rules, 2007, Rule 5 and Schedule 1 thereto, to say that the pay which is drawn by the appellant for the present is equivalent to that of a Director or an Additional Director and therefore, as per the Notification issued by the State Government vide Annexure R/1 dated 21st March, 2006, the Health Commissioner in the Department is not authorized to suspend him as the appellant is holding a post or is an officer of the rank/ grade/ cadre of Director. Thereafter, referring to the provisions of Rule 9 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, Rule 12 of the said Rules it was tried to be emphasized that under these Rules there is no provision for delegation of power. It is only the Appointing Authority or the Disciplinary Authority or any authority empowered by the Governor by a Special order, who can suspend an employee or take disciplinary action and as the delegation of power in the present case is contrary to Rule 9 or not under Rule 9, the same is unsustainable. That apart, it was tried to be emphasized that even if the Notification dated 21st March, 2006 Annexure R/1 gives certain power to the Health Commissioner for imposing minor penalties as contemplated under Rule 10 of the Discipline and Appeal Rules, that will not entitle the Health Commissioner to suspend the appellant under Rule 9, and therefore, the suspension is unsustainable. 6. 6. In sum and substance, the contention of the appellant as advanced by the learned Senior Counsel is to the effect that the appellant holds a post in the rank/ cadre of a Director and the pay which is drawn by the appellant for the present is equivalent to that of a Director and therefore, the appellant cannot be suspended by the Health Commissioner. That apart, by taking us through the allegations leveled in the charge sheet and the merits of the reasons indicated in the order of suspension and the disciplinary proceedings initiated, it was tried to be emphasized that even on merit, the suspension is unreasonable and unwarranted as the allegations are not correct. 7. Shri R. N. Singh, learned Senior Counsel appearing for the respondents refuted the aforesaid and at the very outset submitted that merits of the suspension order cannot be gone into in this appeal as the appellant for the said purpose has an alternate remedy of filing an appeal and this question is already considered by the learned Single Judge and when the submissions before the Writ Court was confined to the competency of the Commissioner for Health in suspending the appellant, it is argued by Shri R. N. Singh, learned Senior Counsel that this ground which was not canvassed before the Writ Court cannot be raised now in this Writ Appeal. That apart, Shri Singh, learned Senior Counsel argues that even if such a contention is permissible it has to be done by resorting to the statutory remedy of appeal available. 8. As far as the jurisdiction of the Health Commissioner to suspend the appellant is concerned, Shri R. N. Singh, learned Senior Counsel invites our attention to Rule 2(1) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 and submits that a "Disciplinary Authority" is defined under this provision to mean "an authority competent under the Rule to impose any of the penalties specified in Rule 10. Thereafter, he refers to the Notification dated 21st March, 2006 to say that by virtue of the powers conferred under Rule 12(2) the Governor has empowered the Commissioner, Health Services in the Public Health and Family Welfare Department to impose minor penalties as contemplated under Rule (1) to (4) of Rule 10 and therefore, the Health Commissioner becomes the Disciplinary Authority and as under Rule 9(1) the Disciplinary Authority is empowered to suspend an Officer who is not holding the rank of Director, the action taken is proper and the learned Writ Court has not committed any error in dismissing the Writ Petition. That apart, Shri R. N. Singh, learned Senior Counsel invites our attention to the Recruitment Rules of 2007 and points out that the cadre of Director, Additional Director and Joint Director are different. They are different cadre post and in different rank, even though classified under a common class I post. It is said that pay scale of Joint Director and Directors are different and as the appellant is holding the post in the rank of Joint Director which is below the rank of Director in the hierarchy of Officers as contemplated under the Recruitment Rules, the appellant cannot claim himself to be Director. Contending that the cadre of Joint Director and Director are different and in assessing the same, learned Single Judge has not committed any error, Shri Singh prays for dismissal of the Writ Appeal. 9. We have heard learned counsel for the parties at length and perused the record. The only question involved in this appeal is as to whether the Commissioner of Health Services can suspend the appellant and another incidental question which is also required to be answered is as to whether the appellant is holding a post in the cadre or rank of Director and therefore, the Notification Annexure R/1 dated 21st March, 2006 is not applicable to him. 10. Before considering the aforesaid question, it is appropriate to refer to the statutory Rules applicable in the matter. Initiation of departmental proceedings and powers of suspension as laid down in the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. 10. Before considering the aforesaid question, it is appropriate to refer to the statutory Rules applicable in the matter. Initiation of departmental proceedings and powers of suspension as laid down in the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. Rule 2(d) of the said Rules defines a "Disciplinary Authority" to mean " the authority competent under the Rules to impose on a Government servant any of the penalties specified in Rule 10." Rule 10 specifies the various penalties which can be imposed on a Government servant for misconduct committed by him and Rule 12 indicates the Disciplinary Authorities who can impose the punishment. It is contemplated under sub rule 1 of Rule 12 that the Government may impose any of the penalties specified in Rule 10 and thereafter in sub rule 2 of Rule 12 it is indicated that the penalties specified in Rule 10 can also be imposed on a Member of Civil Services by the Appointing Authority or the Authority specified in the Schedule to the Rules or by any other authority empowered in this behalf by a general or special order of the Governor. Rule 9 contemplates that the authorities who can suspend an employee and the authorities specified in Rule 9(1) who can suspend a Government servant are, the Appointing Authority, any subordinate authority or the Disciplinary Authority or any other Authority empowered on this behalf by the Governor by a general or special order. A conjoint reading of all these Rules clearly goes to show that apart from the Appointing Authority under Rule 9(1) the Disciplinary Authority is also empowered to suspend a Government servant. Rule 2(d) indicates that any authority who is authorized to impose the penalties under Rule 10 is the Disciplinary Authority and under Rule 12(1) the Disciplinary Authorities have been specified which include a authority empowered to impose any of the penalties contemplated under Rule 10 (i) to (iv) by a general or special order issued by the Governor. 11. That being so, the notification Annexure R/1 dated 21st March, 2006 is a notification specifying by a special order a Disciplinary Authority in the Health Department who is empowered to impose punishments prescribed under Rule 10 (i) to (iv) and the Health Commissioner is the specified authority to do so. 11. That being so, the notification Annexure R/1 dated 21st March, 2006 is a notification specifying by a special order a Disciplinary Authority in the Health Department who is empowered to impose punishments prescribed under Rule 10 (i) to (iv) and the Health Commissioner is the specified authority to do so. Accordingly, what has been done by Annexure R/1 dated 21st March, 2006 is nomination of a Disciplinary Authority in the Health Department for imposing minor punishment under Rule 10(i) to (iv). That being the legal position it has to be held that the Health Commissioner in the Public Health and Family Welfare Department is a notified Disciplinary Authority for taking departmental action in the matter of imposing minor punishment under Rule 10 (1) to (4) and therefore, he also becomes a Disciplinary Authority for the purpose of Rule 9(1) i.e. for the purpose of suspension. This is a finding recorded by the learned Single Judge after interpreting the Rules and we see no error in the same. 12. The next question that arises for consideration is as to whether the appellant's contention that he is holding the post in the cadre or rank of Director can be accepted or not. The Notification dated 21st March, 2006 even though notifies the Health Commissioner as a Disciplinary Authority for imposing the punishment specified under Rule 10 (i) to (iv) but it clearly says that the said authority is the Disciplinary Authority for all officers including Class I officers except a Officer of the rank of the Director. Accordingly, it has to be seen as to whether the appellant falls in the category of an officer coming within the rank of a Director. This takes us to consider the question as to what is the meaning of the word "rank" or "cadre" as is used in service jurisprudence. The learned Single Judge has considered the question as to whether the post held by the appellant i.e. the post of Joint Director falls within the same cadre as a Director. The learned Writ Court has referred to the meaning of the word "cadre" as is explained by the Supreme Court in the case of Chakradhar Vs. State of Bihar - AIR 1988 SC 959 and after taking note of the provisions of Fundamental Rule 9(4) it has been held that the appellant does not hold a post in the cadre of Director. State of Bihar - AIR 1988 SC 959 and after taking note of the provisions of Fundamental Rule 9(4) it has been held that the appellant does not hold a post in the cadre of Director. As defined under the M.P. Fundamental Rule 9(4) "cadre" means strength of service or part of service sanctioned as a separate unit. In the case of K. S. Srinivasan Vs. Union of India - AIR 1958 SC 419 the following principles have been laid down with regard to determining the question as to what are the conditions to be fulfilled to say as to whether two posts fall in the same cadre or not. The principles laid down reads as under :- "Under Fundamental Rule 9(31)(c) a " post is said to be on the same time-scale as another post on a time-scale if the two time-scales are identical and the posts fall within a cadre, or class in a cadre, such cadre or class having been created in order to fill all posts involving duties of approximately the same character or degree of responsibility, in a service or establishment, or group of establishments". It is worthy of note that two conditions must be fulfilled for the application of Fundamental Rule 9(31)(c): one is that the two time scales must be identical and the other is that the two posts must fall in the same cadre or class in a cadre." (Emphasis Supplied) 13. If the aforesaid principle is applied in the facts and circumstances of the present case, it would be seen that the two conditions that the time scale must be identical or two class in the cadre or the same class in a cadre is not met with in the present case. Under the Recruitment Rules the pay scale for the post of Directors are Rs.37,000-67,000/- with a grade pay of Rs.10,000/- whereas, the scale of pay for a Joint Director is Rs.15,600-39,100/- with a grade pay of Rs.7,600/-.Reliance placed by the appellant to his grant of selection grade to say that he has been granted selection grade in the band of Rs.37,000-67,000/- will not be of any help to the appellant for saying that he falls in the cadre or rank of a Director. The learned Writ Court has rightly applied the law laid down in the case of Chakradhar (supra) to say that the petitioner is not in the same grade or cadre as a Joint Director as the petitioner is holding the substantive post of Joint Director and the post of Director is a promotional post for Joint Director and the cadre strength of both the post are classified differently in the relevant Rules. That apart, in the Notification Annexure R/1 dated 21st March, 2006, the key words are "except the officer of the rank of Director". The word "cadre" is not used in this notification. Rank as normally used with regard to service jurisprudence has to be construed by giving effect to the correct meaning of the word "rank". While considering the meaning of expression "reduction in rank" as is used in various Discipline and Appeal Rules, the Supreme Court in the case of High Court of Calcutta Vs. Amal Kumar Roy - AIR 1962 SC 1704 has dealt with the matter in the following manner :- "The word ",rank" can be and has been used in different senses in different contexts. The expression "rank" in Art. 311(2) has reference to a person's classification and not his particular place in the same cadre in the hierarchy of the service to which he belongs. Hence, in the context of the Judicial Service of West Bengal, "reduction in rank" would imply that a person who is already holding the post of a Subordinate Judge has been reduced to the position of a Munsif, the rank of a Subordinate Judge being higher than that of a Munsif. But Subordinate Judge in the same cadre hold the same rank, though they have to be listed in order of seniority in the Civil List. Therefore, losing some places in the seniority list is not tantamount to reduction in rank." 14. "Rank" therefore normally has to be held to have reference to a person, classification and his placing at a particular place in the hierarchy of service to which he belongs. In the Health Department the appellant belongs to the rank of Joint Director and above him in the hierarchy are various posts of the Directors as indicated in Schedule 1 to the Recruitment Rules of 2007. In the Health Department the appellant belongs to the rank of Joint Director and above him in the hierarchy are various posts of the Directors as indicated in Schedule 1 to the Recruitment Rules of 2007. The hierarchy of various rank in the department indicates to be in the following descending order : Director, Joint Director, Chief Medical and Health Officer/Deputy Director and so on. Admittedly, the appellant was promoted from the post of Deputy Director to the post of Joint Director i.e. a rank higher in the hierarchy and the post of Director is still above in the departmental scheme of promotion or hierarchy. That being so, once the notification Annexure R/1 dated 21st March, 2006 says that the notification apply to all except a person in the rank of Director and when the appellant does not belong to the said rank of Director, we see no error in the order passed by the learned Writ Court warranting any further consideration. The Writ Court has taken note of each and every aspects of the matter and decided the question in accordance with law. That being so, we are not inclined to interfere into the matter. 15. As far as merits of the order of suspension is concerned, order passed by the learned Single Judge clearly shows that arguments on merits was not advanced. That apart, if the appellant wants to challenge the order of suspension on merits, appellant has to take recourse to the statutory remedy by filing appeal and for the said purpose indulgence by a Writ Court was not called for. 16. Accordingly, finding no ground to interfere into the matter, the appeal stands dismissed.