Research › Search › Judgment

Calcutta High Court · body

2018 DIGILAW 149 (CAL)

V. Trimurthy v. Lieutenant Governor/Administrator

2018-01-19

SAMBUDDHA CHAKRABARTI

body2018
JUDGMENT : SAMBUDDHA CHAKRABARTI, J. The petitioners have challenged an order dated November 10, 2017, passed by the Secretary (RD) i.e. the respondent no. 3 herein, rescinding the order dated October 09, 2017 passed by the Adhyaksha, Zilla Parishad i.e. the respondent no. 5 herein with immediate effect. 2. The essential facts necessary for the disposal of the writ petition may be stated in brief. The petitioners who were working in the Zilla Parishad had filed a writ petition earlier and this court had directed the Zilla Parishad to consider their claim. By a resolution dated February 15, 2016, the Zilla Parishad had decided to regularize the services of all the daily rated mazdoors. 3. That order was challenged by the present set of petitioners by another writ petition and High Court disposed of the same on June 15, 2017 directing the Zilla Parishad to implement the resolution subject to any approval or sanction to be obtained from the Andaman and Nicobar Administration or any other authority. Pursuant to that the Zilla Parishad through Adhyaksha had issued an order of appointment in favour of the petitioners. 4. On November 01, 2017, the Chief Executive Officer of Zilla Parishad i.e. the respondent no. 6 suspended the operation of order of appointment. Subsequently, the Lieutenant Governor, i.e. respondent no. 1, by an order dated November 10, 2017 set aside the order of appointment. This order, as mentioned before, is under challenge. 5. The respondent nos. 1 to 3 have contested the writ petition by filing an affidavit-in-opposition. It has been the contention of the respondents that the functions and powers of the Panchayat Raj Institutions are regulated by Andaman and Nicobar Islands (Panchayats) Regulation, 1994 (the Regulation, for short). 6. Reg.181 of the Regulation, empowers the Administrator to suspend or prohibit the execution of an order or resolution of the Zilla Parishad or doing of anything which is about to or is being done by or on behalf of the Zilla Parishad which is causing or is likely to cause injury or annoyance to the public or lead to breach of peace or is unlawful. 7. Under the power conferred by the Regulation 1994, the respondent no. 1 had made the Andaman and Nicobar Islands (Panchayat Administration) Rules 1997 (The Rules, for short). 7. Under the power conferred by the Regulation 1994, the respondent no. 1 had made the Andaman and Nicobar Islands (Panchayat Administration) Rules 1997 (The Rules, for short). Rules 45 and 46 specifically deal with the terms and conditions of service of staff of Panchayat and the powers of the Administrator. 8. In the year 2001, the respondent no. 1 accorded sanction for creation of several posts in the Zilla Parishad in three tiers of the Panchayat Raj Institution. The Chief Executive Officer, Zilla Parishad was delegated with the power of appointment and to act as a disciplinary authority for the group C & D posts in the Zilla Parishad. 9. In the year 2007, two Zilla Parishads viz, South Andaman and North & Middle Andaman Zilla Parishad were constituted. Some of the posts of various categories were transferred and placed under the strength of Zilla Parishad, North & Middle Andaman by which the existing strength of the then Andaman & Nicobar Zilla Parishad was reduced. 10. The Andaman & Nicobar Zilla Parishad engaged two classes of workers viz. the daily rated mazdoors who were directly engaged by the Zilla Parishad and the other was the outsourced employees engaged through contractors. 11. In the year 2017, a bunch of writ petitions by each of the petitioners herein were filed praying for regularization of the service of the petitioners and this court directed the Zilla Parishad to implement its resolution taken on February 15, 2016 subject to any approval or sanction to be obtained from the Administration or any authority within three months from the date of communication of the order. 12. In the mean time, the private respondents i.e. respondent nos. 7 to 12 filed a separate writ petition with a similar prayer and the same was disposed of by directing the respondent no. 5 herein to fill in the post after considering the plea of the petitioners having regard to the resolution already taken. It was very specifically mentioned that the court was not deciding the eligibility for absorption which was to be considered by the respondent no. 5 herein. 13. By an order dated October 9, 2017, the respondent no. 5 appointed six outsourced employees and one daily rated mazdoor as Multi Tasking Staff (MTS) on temporary basis. The respondents contended that these employees were not directly engaged by Zilla Parishad but were outsourced employees. 5 herein. 13. By an order dated October 9, 2017, the respondent no. 5 appointed six outsourced employees and one daily rated mazdoor as Multi Tasking Staff (MTS) on temporary basis. The respondents contended that these employees were not directly engaged by Zilla Parishad but were outsourced employees. The respondents contend that the Administration had received several representations questioning the appointments made by the respondent no. 5 herein. The representations were carefully considered and the appointments were rescinded by the respondent no. 1 by an order dated November 10, 2017 under the Reg.181 of the Regulation. The Anti-corruption Unit of Port Blair has also been requested to lodge an FIR and to conduct an investigation against the said appointment made by the respondent no. 5. 14. The Zilla Parishad had provided a list of daily rated mazdoors to the Administration by a communication dated March 10, 2017 which did not contain the names of the writ petitioners. As such, they could not be given the status of daily rated mazdoors which could be claimed by the other group of employees directly engaged by the Zilla Parishad. 15. It has further been the contention of the respondents that the direction to implement the resolution taken on February 15, 2016 was subject to any approval or sanction to be obtained from the Administration or any other authority within three months of the date of communication of the order. But no approval was taken from the Administrator before making the appointment. Thus, the respondent no. 5 violated Rule 45 (7) of the Rules. 16. The order of appointment issued by the respondent no. 5 is not in accordance with law inasmuch as any appointment of officers or employees is to be made in accordance with law and the policy laid down by the Administrator from time to time and must be on an approval by him. The respondent no. 5 has no power to make any appointment in his individual capacity. Since the latter did not consider the whole aspect of the matter, the respondent no. 1 was compelled to intervene and cancel the order invoking Reg. 181 of the Regulation. 17. Moreover, the petitioners did not report for duty to the Chief Executive Officer who is the administrative officer of the institution. He is also the appointing authority of group C & D posts in Zilla Parishad. The respondent no. 1 was compelled to intervene and cancel the order invoking Reg. 181 of the Regulation. 17. Moreover, the petitioners did not report for duty to the Chief Executive Officer who is the administrative officer of the institution. He is also the appointing authority of group C & D posts in Zilla Parishad. The respondent no. 5 has no power in respect of the service of the employees. Rule 46 of the Rules confirms the powers/jurisdiction of the Administrator over the employees of Panchayat administration. 18. The respondents nos. 7 to 12 have been added in the array of the respondents by an application filed by them. According to them, the respondent no. 5 erred in appointing the writ petitioners inasmuch as the added respondents should have been considered for such appointment and not the writ petitioners. 19. The added respondents have further contended that when pursuant to an order of this court, the representation of the private respondents was under consideration, the respondent no. 5 had issued the order of appointment violating all rules of law and in an arbitrary manner. They also assailed the initial appointment of the writ petitioners and sought to justify the subsequent order of cancellation of the same by the respondent no. 1. The stand taken by the private respondents is more or less the same as that of the Administration. 20. As mentioned above, the petitioners have assailed the order rescinding their order of appointment. This is not a writ petition at the instance of the private respondents challenging the appointments made in favour of the writ petitioners. Thus, their contention about their better claim to be appointed is outside the scope of the present writ petition. Mr. Kumar, the learned advocate for the private respondent, is also keenly aware of this limited scope of their opposing the contentions of the petitioners. 21. The petitioners challenged this order primarily on two grounds viz, (a) the order is cryptic, without reasons and, therefore, not sustainable in law; and (b) the respondent no. 1 has no authority or jurisdiction to interfere with the order passed by the respondent no. 5 appointing Multi Tasking Staff in the Zilla Parishad and such act on the part of the Administrator amounts to interfering with the independence of the Zilla Parishad. 22. That the order impugned is an absolutely unreasoned one has been admitted by the respondents as well. 5 appointing Multi Tasking Staff in the Zilla Parishad and such act on the part of the Administrator amounts to interfering with the independence of the Zilla Parishad. 22. That the order impugned is an absolutely unreasoned one has been admitted by the respondents as well. The order merely says that in exercise of the power under Reg. (wrongly mentioned as section) 181 of Regulation, 1994, the respondent no. 1 has rescinded the order dated October 9, 2017 passed by the respondent no. 5 with immediate effect. 23. This is not only an unreasoned order but has been passed without giving the petitioners an opportunity of being heard. Thus the very life force of an order i.e. the reasons have not been provided and the order has been passed entirely behind the back of the petitioners. A very valuable right of the petitioners has been taken away without giving them any opportunity to make any representation. On this ground alone the order impugned is liable to be set aside. 24. But the order is not sustainable not only on this ground alone. There is a far more serious aspect of the matter affecting the validity of the order on the ground of lack of competence of the respondent no. 1 to issue the order impugned. 25. Ms. Nag submitted that the Zilla Parishad acts through the respondent no. 5 and in terms of Reg.151 of the Regulation of 1994 the executive powers of the Zilla Parishad under the Regulation, the responsibility of due fulfillment of the duties imposed on the Zilla Parishad and carrying out its resolutions vest in the Adhyaksha. In exercise of this executive power, the respondent no. 5 issued the order of appointment in favour of the petitioners. 26. On the other hand, Reg. 181 which was invoked by the respondent no. 1 in cancelling of the appointments of the writ petitioners operates in a different field. It deals with a circumstance when in the opinion of the respondent no. 1 certain act of Zilla Parishad is found to be unlawful or is such that it gives rise to public annoyance. The petitioners submitted that since the resolution dated February 15, 2016 has not been set aside by the Administrator, he has no right to rescind the appointment of petitioners. 1 certain act of Zilla Parishad is found to be unlawful or is such that it gives rise to public annoyance. The petitioners submitted that since the resolution dated February 15, 2016 has not been set aside by the Administrator, he has no right to rescind the appointment of petitioners. It appears that on February 15, 2016, the Zilla Parishad in a special meeting had inter alia unanimously resolved that the daily rated mazdoors working under the Zilla Parishad for long years should be regularized. 27. The stand taken by the petitioners is not without basis. After the above resolution was taken, this court had directed the Zilla Parishad to implement the same. Therefore, the respondent no. 1 ought not to have rescinded the appointments of the writ petitioners keeping the said resolution untouched. Once he decided not to disturb the said resolution, he could not have cancelled the appointments of the petitioners when the appointments were given in implementation of the resolution already taken by the Zilla Parishad and the High Court had directed them to give effect to that. 28. Ms. Nag expressed a scepticism that the entire purpose of sustaining the resolution of the Zilla Parishad was to make room for the appointment of the private respondents at a later stage. The mis-giving of the petitioners cannot be said to be misconceived or the result of an unfounded anxiety. The affidavit of the respondents nos. 1 to 3 unhesitatingly records that the petitioners could not be conferred the status of the daily rated mazdoors, but the other group of employees could make the claim. 29. Ms. Nag has relied on an unreported judgment and order passed in MAT No. 01 of 2011 (The Lieutenant Governor v. Venkataraman) and in two other appeals. In all these three appeals, the petitioners who were attached to the Zilla Parishad were placed under suspension by the Lieutenant Governor. In that case, also, it was urged on behalf of the respondents that the Lieutenant Governor had no authority or jurisdiction to issue the order of suspension. 30. The Division Bench observed that the Zilla Parishad is a local self government and as an autonomous body it has every control over its employees. The disciplinary action in respect of the employees of Zilla Parishad can be taken only by the comptenent authority of the Zilla Parishad and no one else. 30. The Division Bench observed that the Zilla Parishad is a local self government and as an autonomous body it has every control over its employees. The disciplinary action in respect of the employees of Zilla Parishad can be taken only by the comptenent authority of the Zilla Parishad and no one else. The Division Bench however observed:— “The Lieutenant Governor should not be unmindful to the fact that the authority of the local self government should be respected. The Lieutenant Governor cannot regulate the terms and conditions of the local self government like Zilla Parishad and initiate any disciplinary proceedings against the employees of Zilla Parishad including the employees serving the Zilla Parishad as deputationist. The service condition of the employees of the local self government can only be controlled and/or regulated by the authority of the local self government and not by any other authority including the Lieutenant Governor of the Andaman and Nicobar Administration. “In the present case, unfortunately, the Lieutenant Governor interfered with the rights and/or authorities of the Zilla Parishad to regulate its own employees including the deputationist and thus sought to cradle the power and/or jurisdiction of the Competent Authority of the Zilla Parishad which is not permissible.” 31. The private respondents sought to draw a distinction between the daily rated mazdoors and contractual employees contending that when the resolution was to regularize the former, the petitioners ought not to have been considered for the posts as they were contractual employees and did not come within the definition of daily rated mazdoors. 32. Such a contention was the subject matter of dispute in a writ petition being W.P No. 230 of 2017 (Smt. M. Jayshree v. A&N Administration) where the petitioner made a complaint that the outsourced contractual employees could not be treated at par with the daily rated mazdoors. Relying on the resolution dated February 15, 2016, the learned Single Judge of this Court by an order dated July 24, 2017 had observed that the resolution was for the purpose of absorbing them in principle but its modalities had not been outlined in that resolution. It was specifically observed that no material had been demonstrated before the Court on the basis of which outsourced contractual employees could be excluded from the process of absorption. It was specifically observed that no material had been demonstrated before the Court on the basis of which outsourced contractual employees could be excluded from the process of absorption. This court had directed the Adhyaksha of the Zilla Parishad to fill in the post upon considering the plea of the petitioners. He was directed to consider by him upon giving opportunity of hearing to the parties. This order has not been challenged by any sets of respondents and thereby it has attained its finality. 33. The said writ petition i.e. writ petition No. 230 of 2017 was disposed of in the presence of the Administration and it does not appear from the order that the Administration had ever taken any exception about the legality of the resolution. The matter was left to be decided by the Adhyaksha. The Administration never raised any issue that the Adhyaksha had no authority to either decide the same or to issue an order of appointment. On the contrary, apart from invoking Reg. 181, the respondents could not show anything about the source of power of the Administrator to decide the issue. 34. Various allegations have been levelled by the Administration about the mode of appointment of the petitioners, viz. namely violation of Articles 14 and 16 of the Constitution of India, want of advertisement and consequently due publicity, want of proper selection process and so on and so forth. However, it cannot be disputed that the order of appointment was the natural outcome of the resolution taken by the Zilla Parishad on February 15, 2016. 35. When this court on an earlier occasion directed the resolution to be implemented by the Zilla Parishad, the resolution had received its legality and validity and the Zilla Parishad had no authority but to comply with the court's order. When an authority decides to regularize a class of employees already working in some capacity under it, the question of initiating recruitment process which is to be done in case of regular appointment, does not arise. Again, I have been informed by the learned advocates that this order was never challenged in appeal. As such, it is difficult to understand how the respondents can ever question either the resolution of the Zilla Parishad or the order of appointment which is the outcome of the resolution itself. Again, I have been informed by the learned advocates that this order was never challenged in appeal. As such, it is difficult to understand how the respondents can ever question either the resolution of the Zilla Parishad or the order of appointment which is the outcome of the resolution itself. They not having challenged either of the orders passed by this court are plainly not permitted to take a turn around and take a stand which has the effect of challenging the orders of this court which have attained their finality. 36. Mr. Mandal strongly relied on Rule 45 (7) Rules empowering the respondent no. 1 to sanction or not to sanction the appointment made by the Zilla Parishad. Rule 45 (7) of the said Rules inter alia says that any appointment of officers or employees under Rule 45(1) shall be made in accordance with the policy laid down by the Administrator from time to time and only on the approval of the Administrator. 37. The said rule is, however, clearly repugnant to the Regulation. The respondent no. 1 derives the rule making power from the Reg.202 to carry out the provisions of the Regulation. In course of her submission, Ms. Nag described the rules as void ab initio as it exceeded the provisions of the parent Regulation. However, since the respondents relied on Rule 45(7) of the Rules, it has to be mentioned that if the rule making power is derived from the Regulation, in the absence of any specific provision about sanctioning the appointment of the Zilla Parishad in the Regulation, something new cannot be introduced in the Rules. This is all the more so when Reg.202 confers the power on the Administrator to make rules “to carry out provisions” of the Regulations. Thus the rule cannot enlarge the scope of the Regulation as the rules are to be framed merely to give effect to the provisions of the regulation. 38. In the case of BL Wadhera v. Union of India, reported in (2002) 9 SCC 108, the Supreme Court observed that a certain rule was beyond the scope of rule making powers of the State Government inasmuch as the right of the Panchayat to gift the land was circumscribed by section 5(a) and 5(b) of the Punjab Village Common Lands (Regulations) Act, 1961. The Supreme Court reiterated the well settled principle that any rule which is contrary to the provisions of Act cannot be given effect to. 39. Mr. Mandal alternatively sought to justify the requirement of obtaining a prior approval of the Administrator before issuing the order of appointment by reference to an order of this Court, passed on June 15, 2017 directing the Zilla Parishad to implement the resolution subject to any approval or sanction to be obtained from the Administration or any other authority. 40. This part of the order does not establish any requirement for obtaining a prior sanction from the Administration. All that it says is that the Zilla Parishad should implement its earlier resolution subject to any approval or sanction to be obtained from the Administration or any authority. The use of the word “any” is significant. It clearly suggests that implementation of the earlier resolution would be subject to any approval from certain authorities if they were required to be obtained. It does not say that the approval is necessary and, therefore, it should be obtained. 41. Mr. Mandal submitted that by a notification, dated March 8, 2001, the Chief Executive Officer, Zilla Parishad has been given the power of appointment of the group C & D employees of the Zilla Parishad. A copy of the said notification has been annexed to the affidavit of the respondent nos. 1 to 3 as annexure R-5. It appears from the said notification the in exercise of the power conferred on him under Reg. 184(2) of the Regulation 1994, the Lieutenant Governor was pleased to delegate the power of appointing and the disciplinary authority in respect of group ‘C’ and ‘D” borne in the establishment of the Zilla Parishad to the Chief Executive Officer of Zilla Parishad with immediate effect. 42. Regulation 184(2) empowers the Administrator to authorize the Chief Executive Officer, subject to such restrictions and conditions as may be specified in the notification, all or any of the powers exercisable by and to perform the function of the Deputy Commissioner under this regulation. Mr. Mandal submitted that the proper provisions in exercise of which such notification was issued was Reg. 184 (1). Even that does not really help the respondents as under Reg. Mr. Mandal submitted that the proper provisions in exercise of which such notification was issued was Reg. 184 (1). Even that does not really help the respondents as under Reg. 184(1) the Administrator is authorized to delegate to any officer or authority or authorities sub-ordinate to him any of the powers conferred on him or any officers subordinate to him by the Regulation, other power to make rules to be exercised, subject to such restrictions and conditions as may be specified in the notification. 43. Thus it is absolutely clear from a bare reading of Regulation 184 in its entirety that neither of the two sub-regulations being (1)&(2) does empower the Administrator to make the Chief Executive Officer the appointing authority of Group ‘C’ and ‘D’ employees of the Zilla Parishad. The scope of delegation as mentioned in Reg.184(1) and 184 (2) is very different and operates for a very different purposes. The Lieutenant Governor could not have invoked Reg.184 to make the Chief Executive Officer the appointing authority or the disciplinary authority for group C & D employees of the Zilla Parishad. 44. Mr. Kumar relied on notification dated June 28, 2014 by which the Lieutenant Governor made the Andaman and Nicobar Administration (Recruitment to the posts of Daftry, Peon, Sweeper-cum-Mali, Messenger, Rider, Chowkidar, Peon-cum-Chowkidar and Safaiwala-cum-Sweeper in the Directorate of RD&PRIs) Rules 2010. These rules were made for regulating the method of recruitments to the post of group C& D in RD & PRIs. This rule has no application to the appointment made by the Zilla Parishad as the Lieutenant Governor has no authority to make any rule relating to recruitment of employees of the Zilla Parishad. 45. Reference may be made to the judgment and order dated February 27, 2009 of the Division Bench of this Court in MAT 30 of 2008 (Mr. Sajan T. Oomen v. The Lieutenant Governor). In that case, the Lieutenant Governor in purported exercise of power conferred under the Proviso to Article 309 of the Constitution of India made the Rules of 2003 regulating the methods of recruitment to group A post of Executive Engineer (Civil) of the Zilla Parishad. Sajan T. Oomen v. The Lieutenant Governor). In that case, the Lieutenant Governor in purported exercise of power conferred under the Proviso to Article 309 of the Constitution of India made the Rules of 2003 regulating the methods of recruitment to group A post of Executive Engineer (Civil) of the Zilla Parishad. The Division Bench had held that the Lieutenant Governor had no authority under Article 309 of the Constitution of India to frame rules inasmuch as his status was not that of a constitutional functionary and not akin to the Governor of the State. 46. Thus after considering all issues raised by the respective parties, I find sufficient merit in case of the petitioners. The grounds of challenge to the order impugned are valid and justifiable. The order dated November 10, 2017 is bad and not sustainable under law not only because it is cryptic or an unreasoned order, but more importantly for lack of competence by the Lieutenant Governor to pass the order impugned which has the effect interfering with the autonomy of Zilla Parishad. 47. If the order impugned was liable to be quashed only for being without any reason, the same could be set aside and sent back to the respondent no. 1 for a fresh consideration after giving the petitioners an opportunity of being heard. But in the present case, a malady is more deeper than passing a cryptic and non-speaking order. In view of the scheme of Regulation and the settled position in law, the Lieutenant Governor must be held to be lacking in jurisdiction to interfere with an autonomous body like Zilla Parishad. The validity of the order cannot also be justified with reference to the Reg.181. 48. The writ petition is allowed. The order, dated November 10, 2017 is set aside and quashed. The respondents are directed to allow the petitioners to resume their duties with immediate effect after communication of the order. The petitioners shall, during the period they were out of employment because of the order passed on November 1, 2017 as well as November 10, 2017, be entitled to full salary and the respondents are directed to pay the same within a period of four weeks from the date of communication of the order. 49. There shall be no order as to costs. 50. 49. There shall be no order as to costs. 50. Urgent certified copy of this order be supplied, if applied for, to the learned advocates for the respective parties upon compliance of usual formalities. Later 51. After I delivered the judgment in open court, Mr. Mandal, the learned Government Pleader prays for stay of the operation of the order for sixty days. Ms. Nag, the learned advocate for the petitioners opposes the prayer. The prayer is heard, considered and in view of what have been stated in the body of the judgment, is rejected.