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2018 DIGILAW 1350 (HP)

Kashmir Chand v. Bhakra Beas Management Board

2018-07-20

AJAY MOHAN GOEL, SANJAY KAROL

body2018
JUDGMENT : Sanjay Karol, J. The sole issue, which arises for consideration in the present petition, is as to whether in the absence of any prior approval of the Central Government, as envisaged under sub-section (9) of Section 79 of the Punjab Re-organization Act, 1966 (hereinafter referred to as the Act), by way of Subordinate Legislation, can the Chairman of the Bhakra Beas Management Board (hereinafter referred to as the Board), be said to have been authorized, thus, entitling him to carry out amendment to the Bhakra Beas Management Board Class-III and Class-IV Employees (Recruitment & Conditions of Service) Regulations, 1994 (hereinafter referred to as ‘Regulations’). 2. At this point in time, we may observe that the Writ Petitioner, while reserving liberty qua Reliefs No.(ii), (iii) & (iv), to be agitated in appropriate proceedings, in accordance with law, desired the Court to adjudicate the following relief in the present petition: “(i) That the respondents may kindly be directed to hold DPC for the existing three posts of Sub Fire Officers which have already fallen vacant, as per ‘existing provisions’ reflected in Annexure P- 10, and consider the petitioner for promotion to the aforesaid posts from due date, with all consequential benefits”. 3. Certain facts are not in dispute. On 9.1.1992, petitioner Kashmir Chand was selected and appointed as a Fireman in the respondent-Board. On the issue of promotion to the next higher post, i.e. Leading Fireman, the Writ Petitioner had to agitate his rights, which stood crystallized by this Court, with the rendering of judgment dated 26.5.2014, in CWP No. 4709 of 2010, titled as Kashmir Chand versus Bhakra Beas Management Board and others. Significantly, the Board accepted the findings returned therein, but however, some of the aggrieved private parties, preferred an appeal, being LPA No.137 of 2014, titled as Tek Chand & others v. B.B.M.B & others, in which interim directions were passed to implement the directions contained in the judgment, subject to the outcome of the appeal. Consequently, vide Office Order dated 21.7.2014, the Writ Petitioner was promoted as a Leading Fireman, on regular basis, w.e.f. 9.2.2012. 4. The next promotional post from Leading Fireman is that of a Sub Fire Officer, for which post, the regulations originally envisaged the eligibility criteria as under: Sr. No. Category Method of appointment Minimum educational & other qualifications Minimum experience 2. 4. The next promotional post from Leading Fireman is that of a Sub Fire Officer, for which post, the regulations originally envisaged the eligibility criteria as under: Sr. No. Category Method of appointment Minimum educational & other qualifications Minimum experience 2. Sub Fire Officer By promotion amongst Leading Firemen Qualified Sub Fire Officer’s course from National Fire Service College, Nagpur OR Matric with Fire Course from Ministry of Defence or Home Affairs. OR Matric without any Fire course 2 years experience in Fire Service 4 years experience in Fire Service 5 years experience in Fire Service 5. However, the eligibility criteria was to be amended vide order dated 16.12.2014 (Annexure P-9), whereby it was proposed as under: Sr. No. Category Method of appointment Minimum educational & other qualifications Minimum experience 2. Sub Fire Officer By promotion amongst Leading Firemen Qualified Sub Fire Officer’s course from National Fire Service College, Nagpur OR Matric with Fire Course from Ministry of Defence or Home Affairs. OR Matric without any Fire course 2 years experience in Fire Service 4 years experience in Fire Service 5 years experience in Fire Service 6. In the said factual matrix, we are called upon to adjudicate as to whether Office Order dated 16.12.2014 (Annexure P-9), issued by the Chairman of the Board, which is reproduced hereinunder, authorisedly amends the Regulations (reproduced supra) or not: “In exercise of powers conferred under Regulation 2 (I) (p) of Bhakra Beas Management Board Class-III & Class-IV Employees’ (Recruitment and Conditions of Service) Regulations, 1994, Chairman, BBMB is pleased to amend the provisions i.e. method of appointment, minimum educational & other qualifications of Schedule ‘A’ of ibid Regulations and substitute the same in respect of the categories under various Groups as mentioned in Annexure ‘A’ to “F” attached with this order. This issues with the approval of the Chairman, BBMB.” 7. The Board is entitled to frame Regulations under the provisions of Section 79 of the Act, which reads as under: “79. This issues with the approval of the Chairman, BBMB.” 7. The Board is entitled to frame Regulations under the provisions of Section 79 of the Act, which reads as under: “79. Bhakra Management Board:- (1) The Central Government shall constitute a Board to be called the Bhakra Management Board for the administration, maintenance and operation of the follow- ing works namely:- (a) Bhakra Dain and Reservoir and works appurtenant thereto; (b) Nangal Dam and Nangal-Hydel Channel up to Kotia Power House; (c) the irrigation headworks at Rupar, Harike and Ferozepur; (d) Bhakra Power Houses : Provided that the administration, maintenance and operation by the said Board of the generating units of the Right Bank Power House as have not been commissioned shall commence as and when any such unit has been commissioned; (e) Ganguwal and Kotia Power Houses; (f) Sub-stations at Ganguwal, Ambala, Panipat, Delhi, Ludhiana, Sangrur and Hissar and the main 220KV transmission lines connecting the said sub-stations with the power stations specified in clauses (d) and (e): and (g) such other works as the Central Government may, by notification in the Official Gazette, specify. (2) The Bhakra Management Board shall consist of- (a) a whole time Chairman and two whole time members to be appointed by the Central Government; (b) a representative each of the Governments of the States of Punjab, Haryana and Rajasthan and the Union territory of Himachal Pradesh to be nominated by the respective Governments or Administrator, as the case may be: (c) the representatives of the Central Government to be nominated by that Government. (3) The functions of the Bhakra Management Board shall include- (a) the regulation of the supply of water from the Bhakra-Nangal Project to the States of Haryana. (3) The functions of the Bhakra Management Board shall include- (a) the regulation of the supply of water from the Bhakra-Nangal Project to the States of Haryana. Punjab and Rajasthan having regard to- (i) any agreement entered into or arrangement made between the Governments of the existing State of Punjab and the State of Rajasthan, and (ii) the agreement or the order referred to in sub-section (1) of section 78 ; (b) the regulation of the supply of power generated at the power-houses referred to in sub-section (1) to any Electricity Board or other authority in charge of the distribution of power having regard to- (i) any agreement entered into or arrangement made between the Governments of the existing State of Punjab and the State of Rajasthan, (ii) the agreement or the order referred to in sub-section (1) of section 78, and (iii) any agreement entered into or arrangement made by the existing State of Punjab or the Punjab Electricity Board or the State of Rajasthan or the Rajasthan Electricity Board with any other Electricity Board or authority in charge of distribution of power before the appointed day in relation to the supply of power generated at the power houses specified in subsection (1); (c) the construction of such of the remaining works connected with the Right Bank Power House as the Central Government may specify; (d) such other functions as the Central Government may, after consultation with the Governments of the States of Haryana, Punjab and Rajasthan, entrust to it. (4) The Bhakra Management Board may employ such staff as it may consider necessary for the efficient discharge of its functions under this Act : Provided that every person who immediately before the constitution of the said Board was engaged in the construction, maintenance or operation of the works in sub-section (I) shall continue to be so employed under the Board in connection with the said works on the same terms and conditions of service as were applicable to him before such constitution until the Central Government by order directs otherwise: Provided further that the said Board may at any time in consultation with State Government or the Electricity Board concerned and with the previous approval of the Central Government return any such person for service under that Government or Board. (5) The Governments of the successor States and of Rajasthan shall at all times provide the necessary funds to the Bhakra Management Board to meet all expenses (including the salaries and allowances of the staff) required for the discharge of its functions and such amounts shall be apportioned among the successor States the State of Rajasthan, and Electricity Boards of the said States in such proportion as the Central Government may, having regard to the benefits to each of the said States or Boards, specify. (6) The Bhakra Management Board shall be under the control of the Central Government and shall comply with such directions, as may from time to time, be given to it by that Government. (7) The Bhakra Management Board may with the approval of the Central Government delegate such of its powers, functions and duties as it may deem fit to the Chairman of the said Board or to any officer subordinate to the Board. (8) The Central Government may, for the purpose of enabling the Bhakra Management Board to function effectively, issue such directions to the State Governments of Haryana, Punjab and Rajasthan and the Administrator of the Union territory of Himachal Pradesh or any other authority, and the State Governments Administrator or authority shall comply with such directions. (9) The Bhakra Management Board may, with the previous approval of the Central Government and by notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder, to provide for- (a) regulating the time and place of meetings of the Board and the procedure to be followed for the transaction of business at such meetings, (b) delegation of powers and duties to the Chairman or any officer of the Board: (c) the appointment, and the regulation of the conditions of service, of the officers and other staff of the Board: (d) any other matter for which regulations are considered necessary by the Board.” (Emphasis Supplied) 8. We find language of the statute to be unambiguously clear. From a plain reading of the statute, it is evidently clear that the Regulations can be framed, which expression would also include “amended” by the Board “with the previous approval of the Central Government and by issuing a notification in the official Gazette”. 9. We find language of the statute to be unambiguously clear. From a plain reading of the statute, it is evidently clear that the Regulations can be framed, which expression would also include “amended” by the Board “with the previous approval of the Central Government and by issuing a notification in the official Gazette”. 9. At this point in time, we may only record that the factum of previous approval of the Central Government was never ever sought for or obtained by the Board/its Chairman, nor has the Central Government accorded such approval. 10. While arguing that the Rule stood amended vide order dated 16.12.2014, whereby the Writ Petitioner becomes ineligible for promotion to the post of Sub Fire Officer, Mr. Naresh Sood, learned Senior Advocate, appearing for the Board, invites our attention to the provisions of clause (2)(i)(p) of the Regulations, which reads as under: “2(1)(p). “Service” means the service of the Board and shall comprise groups of various classes of posts shown in Schedule ‘A’ annexed with these regulations; Provided that the Chairman shall be competent to make additions to or deletions of, or substitution of any posts in a group or add new groups in the Schedule ‘A’ annexed with these regulations, when considered expedient to do so depending upon the work load:” (Emphasis supplied) 11. We find the submission to be fallacious, for two reasons, (a) the power under clause (2)(i)(p) is by way of Subordinate Legislation, (b) such power is restricted only with regard to “addition”, “deletion” or “substitution” of any post in a group or add new groups in Schedule ‘A’ to the Regulations, having effect of changing the eligibility criteria of any post, so specified in the Regulations. And the reason is not far to seek. The Board was constituted to carry out certain works of national importance, originally sought to be undertaken by different States, for which purpose employees, fulfilling certain eligibility criteria, were employed. Each State had its different Rules. Hence, to ensure timely completion of the Projects, uniformity and continuity in service and its conditions were required to be maintained. 12. We are also not in agreement with Mr. Each State had its different Rules. Hence, to ensure timely completion of the Projects, uniformity and continuity in service and its conditions were required to be maintained. 12. We are also not in agreement with Mr. Naresh Sood, learned Senior Counsel, that the Chairman is empowered to amend the Regulations also by virtue of Section 97 of the Act, which we find also does not authorize or empower the Chairman to do so, for no rules authorizing him to amend the rules/regulations stand framed by the Central Government, reads under: “97. Power to make rules:- (1) The Central Government may, by notification in the Official Gazette make rules to give effect to the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:- (a) the procedure to be followed by the Bhakra Management Board and the Beas Construction Board for the conduct of business and for the proper functioning of the Boards and the manner of filling casual vacancies among the members of the said Boards; (b) the salaries and allowances to be paid to the whole time Chairman and whole time members of the Bhakra Management Board; (c) the salaries and allowances and other conditions of service of the members of the staff of the Bhakra Management Board or the Beas Construction Board; (d) the maintenance of records of all business transacted at the meetings of the Bhakra Management Board or the Beas Construction Board and the submission of copies of such records to the Central Government. (e) the conditions subject to which, and the mode in which, contracts may be made on behalf of the successor States and the State of Rajasthan in relation to the functions of the Bhakira Management Board or the Beas Construction Board; (f) the preparation of the budget estimates of the receipts and expenditure of the said Boards and the authority by which such estimates shall be approved; (g) the conditions subject to which the said Boards may incur expenditure or reappropriate funds from any budget head to another such head; (h) the preparation and submission of annual reports; (i) the maintenance of accounts of the expenditure incurred by the said Boards; (j) any other matter which is to be, or may be, prescribed. (3) Every rule made under this section shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or 1 [in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.” 13. There is nothing in the said Section, which confers any power upon the Chairman, as is so contended. The rules making powers are quite stringent. 14. In Hukamchand v. Union of India, AIR 1972 SC 2427 , Hon’ble Supreme Court has held that power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. This law has again been reiterated by Hon’ble Supreme Court in Additional District Magistrate v. Shri Siri Ram, 2000 (5) SCC 643, 451. 15. It is settled law that delegated legislation is open to scrutiny of the Courts and may be declared invalid particularly on two grounds: (a) Violation of the Constitution; and (b) Violation of the enabling Act. 16. In fact, the delegate cannot override the Act either by exceeding the authority or by making provisions which are inconsistent with the Act. The delegate has to exercise the power of making subordinate legislation in accordance with the procedure prescribed ad subordinate legislation may be struck down as arbitrary if the same fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or the Constitution. (Indian Express Newspaper v. Union of India, (1985) 1 SCC 641 ) 17. (Indian Express Newspaper v. Union of India, (1985) 1 SCC 641 ) 17. In Moti Ram Deka vs. General Manager, North East Frontier Railway, AIR 1964 Supreme Court 600, a seven Judge Bench of the Hon’ble Supreme Court, while dealing with a subordinate legislation which was not in consonance with the provisions of the Constitution, has held that such subordinate legislation, violating any mandatory provision of the Constitution, will be void. 18. Sub section (7) of Section 79 empowers the Board to delegate its functions to its Chairman, but then even this has to be with the “approval of the Central Government”. Well, this has not been done in the present case. 19. At this stage, we would like to refer to provisions of Section 21 of the General Clauses Act, 1897, which reads as under:- “21. Power to issue, to include power to add to amend, vary rescind notifications, orders, rules or bye-laws—Where, by any [Central Act] or Regulations a power to [issue notifications,] orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any [notifications,] orders, rules or byelaws so [issued].” 20. Section 21 of the General Clauses Act, 1897 thus clearly provides that where any Central Act or Regulation confers powers to issue notifications, orders, rules or bye-laws, then that power is exercisable in the like manner and subject to the like sanction and conditions, if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. 21. In the present case, the Regulations in issue have been framed in exercise of powers conferred upon the Board by the Central Act. Now, in case the Regulations so framed are to be amended by the Board, then obviously, they have to be amended by exercising powers to amend the same, if any, which in our considered opinion, means that as respondent-Board can make Regulations only with the previous approval of the Central Government, then amendment in the same can also be carried out by the respondent-Board only with the previous approval of the Central Government. 22. In Macquarie Bank Limited Vs. 22. In Macquarie Bank Limited Vs. Shilpi Cable Technologies Limited, (2018) 2 Supreme Court Cases 674, Hon’ble Supreme Court has held that the task of a Judge, when he looks at the literal language of the statute as well as the object and purpose of the statute, is not to interpret the provision as he likes but is to interpret the provision keeping in mind Parliament’s language and the object that Parliament had in mind. With this caveat, it is clear that judges are not knighterrants free to roam around in the interpretative world doing as each Judge likes. They are bound by the text of the statute, together with the context in which the statute is enacted; and both text and context are Parliaments’, and not what the Judge thinks the statute has been enacted for. 23. In Association of Management of Private Colleges Vs. All India Council for Technical Education and others, (2013) 8 Supreme Court Cases 271, Hon’ble Supreme Court has held as under: “67. The position of law is well settled by this Court that if the Statute prescribes a particular procedure to do an act in a particular way, that act must be done in that manner, otherwise it is not at all done. In the case of Babu Verghese v. Bar Council of Kerala, after referring to this Court's earlier decisions and Privy Council and Chancellor's Court, it was held as under: "31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under: 32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law." In view of the above said decision, not placing the amended Regulations on the floor of the Houses of Parliament as required under Section 24 of the AICTE Act vitiates the amended Regulations in law and hence the submissions made on behalf of the appellants in this regard deserve to be accepted. Accordingly, point Nos. 4 and 5 are answered in favour of the appellants.” 24. In V.L.S. Finance Limited Vs. Union of India and others, (2013) 6 Supreme Court Cases 278, Hon’ble Supreme Court has held as under: “18. As is well settled, while interpreting the provisions of a statute, the court avoids rejection or addition of words and resort to that only in exceptional circumstances to achieve the purpose of Act or give purposeful meaning. It is also a cardinal rule of interpretation that words, phrases and sentences are to be given their natural, plain and clear meaning. When the language is clear and unambiguous, it must be interpreted in an ordinary sense and no addition or alteration of the words or expressions used is permissible.” 25. In Babu Verghese and others Vs. Bar Council of Kerala and others, (1999) 3 Supreme Court Cases 422, Hon’ble Supreme Court has held as under: 26. “31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor vs. Taylor (1875) 1 Ch.D 426 which was followed by Lord Roche in Nazir Ahmad vs. King Emperor, 63 Indian Appeals 372 : AIR 1936 PC 253 who stated as under : "Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all." 32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh & Anr. vs. State of Vindhya Pradesh, 1954 SCR 1098 : AIR 1954 SC 322 and again in Deep Chand vs. State of Rajasthan, 1962(1) SCR 662 : AIR 1961 SC 1527 . These cases were considered by a Three-Judge Bench of this Court in State of Uttar Pradesh vs. Singhara Singh & Ors. AIR 1964 SC 358 = (1964) 1 SCWR 57 and the rule laid down in Nazir Ahmad's case (supra) was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law.” 27. In Pradip Kumar Maity Vs. Chinmoy Kumar Bhunia and others, (2013) 11 Supreme Court Cases 122, Hon’ble Supreme has held as under: “13…...The Constitution of India is the grundnorm, demanding meticulous allegiance from all other laws. Statutes, central/parliamentary or of State legislatures, must mandatorily comply with our Constitution. We must hasten to emphasise that statutes must also conform with the discipline of the three lists contained in the Seventh Schedule of the Constitution. Most statutes postulate the promulgation of Rules, through delegated legislation, which, if they are not ultra vires the Statute inasmuch as they are operational within the parameters of their parent pandects, require adherence. Executive Orders or Administrative Instructions cease to have legal efficacy the moment they are contrary to their superiors, i.e., the Constitution, a Statute, or any delegated legislation in the form of Rules or Regulations. This is also referred to as ‘dominion paramountcy’ by some Courts. There is a plethora of precedents on this proposition, as also on the tiers of subservience, including the adumbration in the case of Saiyad Mohammad Bakar El-Edroos v. Abdulhabib Hasan Arab [JT 1998 (3) SC 76 : 1998 (4) SCC 343 ] and K.P. Sudhakaran v. State of Kerala” 28. In K.P. Sudhakaran and another Vs. State of Kerala and others, (2006) 5 Supreme Court Cases 386, Hon’ble Supreme Court has held that once a statutory rule is made without providing any exceptions, it is not possible to carve out exceptions to such rule by judicial interpretation. 29. In Marathwada University Vs. In K.P. Sudhakaran and another Vs. State of Kerala and others, (2006) 5 Supreme Court Cases 386, Hon’ble Supreme Court has held that once a statutory rule is made without providing any exceptions, it is not possible to carve out exceptions to such rule by judicial interpretation. 29. In Marathwada University Vs. Seshrao Balwant Rao Chavan, (1989) 3 Supreme Court Cases 132, Hon’ble Supreme Court has held that statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is void abinitio and cannot be ratified. 30. Thus, in our considered view, in the absence of any previous approval, as envisaged under sub-section (9) of Section 79, it cannot be said that the Regulations stood amended with the exercise of such power by the Chairman of the Board. 31. The result of the above discussion of ours is that the field pertaining to promotion to the post of Sub Fire Officer is still governed by the original Rules which are reflected in the heading “existing provision” in Annexure P-10 and the “proposed amendment” which is so reflected in the Annexure P-10 has not legally come into force. 32. Accordingly, eligibility of the petitioner has to be taken into consideration as per the existing provisions for considering him for the purpose of promotion to the post of Sub Fire Officer, which the Board must do immediately. In view of above discussion, the petition is allowed. Pending miscellaneous applications, if any, also stands disposed of.