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2018 DIGILAW 204 (PNJ)

Ramandeep Singh v. Union of India

2018-01-17

RAJAN GUPTA

body2018
JUDGMENT Mr. Rajan Gupta J.:- Petitioner has sought a writ in the nature of quo-warrantoseeking removal of respondent no. 5 from the post of Chief PrincipalSecretary to Chief Minister (hereinafter referred as ‘CPSCM’) on the groundthat his appointment is not sustainable in the eyes of law. Petitioner is statedto be a practicing advocate and resident of State of Punjab, District Mohali.He has stated that he has vital interest in the functioning of administrativemachinery of the State as it affects his daily life and even otherwise everycitizen is entitled to good governance. As a public spirited person he has theright to question the appointment of respondent no. 5. Petitioner has placedon record internal communications, noting files and other documents, all ofwhich may not be in public domain, unless specifically sought. However,same having been produced and made part of record, this court proceeds toexamine the pleas raised by the petitioner in this petition. 2. Mr. Gurminder Singh, learned senior counsel for the petitionervehemently urged before the court that vide order dated 17.03.2017,respondent no. 5 was appointed as Chief Principal Secretary to the ChiefMinister in the pay-scale of Cabinet Secretary with the stipulation that termsand conditions of the office would be notified later after approval by Councilof Ministers. However, there is nothing on record to show that Council ofMinisters later accorded approval. This appointment had purportedly beenmade in exercise of Rules under 18 & 19 of the Rules of Business ofGovernment of Punjab, 1992 made by the Governor in exercise of powersunder Article 166(3) of Constitution of India. According to him, said Rulesare mandatory in character. Pursuant to aforesaid Rules, a standing orderwas issued by the Chief Minister stipulating that powers vested in PrincipalSecretary to Chief Minister would be exercised by ‘CPSCM’ during theabsence of Chief Minister. The said officer would be at liberty to disposeoff cases of immediate nature subject to ex-post facto approval. Hevehemently submitted that such functions being sovereign in nature cannotbe delegated to anybody as it would be repugnant to the Constitutionalscheme. According to him, Standing Order would amount to delegation ofpowers vested in the Council of Ministers headed by Chief Minister to‘CPSCM’. Referring to Article 166(3) of the Constitution, he submitted thatthe Rules made thereunder are mandatory in nature. Hevehemently submitted that such functions being sovereign in nature cannotbe delegated to anybody as it would be repugnant to the Constitutionalscheme. According to him, Standing Order would amount to delegation ofpowers vested in the Council of Ministers headed by Chief Minister to‘CPSCM’. Referring to Article 166(3) of the Constitution, he submitted thatthe Rules made thereunder are mandatory in nature. The Standing Order isagainst the Constitutional scheme as it is against the Rules of Business asframed by Governor of Punjab in view of powers vested in him underArticle 166 of the Constitution. He further emphasized that there are other‘cadre officers’ posted in the CMO who have not been given the liberty totake decisions of their own in the absence of the Chief Minister. However,this power has been vested in a non-cadre officer. He submits that soverignfunctions cannot be exercised by an ‘outsider’. This apart, terms andconditions of his appointment were notified on 19.04.2017, however, theydid not have approval of the Council of Ministers. Besides, respondent no.5 being a retired officer, was not amenable to any disciplinary rules or anyother control, having ceased to be a public servant. The order ofappointment was not issued in the name of the Governor as mandated by theConstitution and Rules 8 & 9 of the Rules of Business, 1992. Mereauthentication thereof by an authority, other than Governor, would not makeit a legal order. Though the officer had been empowered to exercisesovereign functions, he had not been administered any oath of secrecy aswas necessary in case of Ministers and cadre officers of the State.According to him, the appointment as ‘CPSCM’ in the rank and pay-scale ofCabinet Secretary shows that it was a post of great authority in the StateGovernment hierarchy and, thus, a ‘public office’ amenable to question byan ordinary citizen by way of writ of quo-warranto. Referring to order,Annexure P-7, he submitted that the Finance Department had opined thatone post of IAS be kept in abeyance in the existing cadre. According tohim, this was done with a view to make way for induction of respondent no.5 as ‘CPSCM’ and to justify payment of emoluments and perks to him. 3. Mr. Ranjit Kumar, learned senior Advocate appearing for theState as well as respondent no. 5 countered the pleas taken by the petitioner.At the outset, he posed a challenge to maintainability of a writ of quowarranto on the ground that respondent no. 5 was not holding a publicoffice. 3. Mr. Ranjit Kumar, learned senior Advocate appearing for theState as well as respondent no. 5 countered the pleas taken by the petitioner.At the outset, he posed a challenge to maintainability of a writ of quowarranto on the ground that respondent no. 5 was not holding a publicoffice. He was merely a ‘staff officer’ in the CMO which, by no stretch ofimagination could be said to be an independent post. His services beingcontractual in nature and co-terminus with term of the Chief Minister, werenot amenable to challenge by way of a writ of quo warranto. According tohim, appointment order dated 17.03.2017 having been ratified by Council ofMinisters on 18.03.2017 was valid in nature. The fact that respondent no. 5had been granted pay and allowances admissible to an officer of the rank ofCabinet Secretary to Government of India, did not mean that he was holdingthe post of Cabinet Secretary and, thus, a ‘public office’. Respondent no. 5,who had retired as an Additional Chief Secretary while drawing a salary ofRs. 2.25 lacs, had been given a contractual appointment, total emolumentsbeing Rs. 2.50 lacs minus pension. Relying upon judgment in R. Chiterlekha1964 (AIR) SC 1823, he submitted that provisions of Article 166 were notmandatory but directory in nature. Thus, order which is not issued in thename of Governor cannot be held to be violative of Rules 8 & 9 of 1992,Rules. Besides, the said order stands authenticated by the Chief Secretarywho was authorized to do so by the Governor under 1992 Rules. An ordernot expressed in the name of Governor cannot be held to be unsustainable.In the written statement submitted subsequently, respondents also raised theplea of coram non-judice stating that Government was not accountable tocourts while appointing a person unless said post is a ‘public office’.Petitioner was infact pursuing a public interest litigation which is beyond thescope of consideration of this court and, thus, it is coram non-judice.Though during the course of arguments it was vehemently denied thatpowers of the Chief Minister had been delegated to respondent no. 5, in thewritten arguments it has been contended that delegation of such powers canbe done and same cannot be subject matter of judicial review. Thearrangement has been worked out to tackle immediate and emergentsituations in consultation with the Chief Minister on mobile, if possible; ifnot, then in terms of the Standing Order. 5, in thewritten arguments it has been contended that delegation of such powers canbe done and same cannot be subject matter of judicial review. Thearrangement has been worked out to tackle immediate and emergentsituations in consultation with the Chief Minister on mobile, if possible; ifnot, then in terms of the Standing Order. According to him, the StandingOrder is totally valid and is being misinterpreted by the petitioner. 4. UOI has filed a short reply. During the course of arguments, itsstand remained that entire issue pertained to the State. Department ofPersonnel & Training had been impleaded for no reason. There was nochallenge to any order/ policy/action of DoPT. Thus, UOI and DoPT bestruck off from the array of parties. 5. This court, thus, proceeds to decide the issues raised before it.The writ of quo warranto is regarded as an appropriate and adequate remedyto determine the right or title to a public office and to oust one who hasusurped or intruded on such office. The writ affords a judicial inquiry intosuch matter. Specific provision has been made in Articles 32 & 226 of theConstitution for issuance of writs, orders or directions in the nature of quowarranto to oust a person from public office in case it is found that same hasbeen unlawfully occupied. Scope of inquiry in this writ has been graduallyenlarged and a right has been granted to any citizen to question “by whatwarrant or authority” a person holds a particular public office. In suchchallenge, it has to be examined whether quo-warranto has been sought inrespect of a person who is holding a ‘public office’. A public office may bean office created by the Constitution, Statue or by virtue of duties it entailsin which general public is interested. It appears that the character of suchoffice ought to involve discharge of duties towards the community, usuallyconnected with governance. If the office is of public nature and involvesdelegation of some of the sovereign functions of the Government, executive,legislative or judicial, rigors of the quo-warranto writ would be attracted. Ona challenge being made if the court finds that office is being held is incontravention of law, it would warrant its interference. If the office is of public nature and involvesdelegation of some of the sovereign functions of the Government, executive,legislative or judicial, rigors of the quo-warranto writ would be attracted. Ona challenge being made if the court finds that office is being held is incontravention of law, it would warrant its interference. The extent to whichwrit of quo warranto can be issued has been laid down in the decision ofHon’ble Supreme Court in Registrar General, High court of Madras v. R.Gandhi,(SC) 2014 (11) SCC 547 ,which is a case pertaining to challenge tothe recommendations made by High Court Collegium for appointment asJudges of Madras High court in which a three Judge Bench of Hon’bleSupreme Court held as under:- “20…… Even after the President of India accepts therecommendations and warrants of appointment are issued, theCourt is competent to quash the warrant as has been done inthis case of Shri Kumar Padma Prasad v. Union of India &ors., AIR 1992 SC 1213 wherein the recommendee was foundnot possessing eligibility for the elevation to the High Court asper Article 217(2). This case goes to show that even when thePresident, has appointed a person to a constitutional office, thequalification of that person to hold that office can be examinedin quo warranto proceedings and the appointment can bequashed. (See also: B.R. Kapur v. State of Tamil Nadu & anr., AIR 2001 SC 3435 ” 6. So as to have an idea about the nature of action in theproceedings for writ of quo-warranto, it would be beneficial to quote fromHalsbury’s Laws of England, 3rd Edn., Vol. 11, p. 145:- “An information in the nature of a quo warranto took the placeof the obsolete writ of quo warranto which lay against a personwho claimed or usurped an office, franchise, or liberty, toenquire by what authority he supported his claim, in order thatthe right to the office or franchise might be determined.”Broadly stated, the quo warranto proceeding affords a judicialenquiry in which any person holding an independentsubstantive public office, or franchise, or liberty, is called uponto show by what right he holds the said office, franchise orliberty; if the inquiry leads to the finding that the holder of theoffice has no valid title to it, the issue of the writ of quowarranto ousts him from that office. In other words, theprocedure of quo warranto confers jurisdiction and authorityon the judiciary to control executive action in the matter ofmaking appointments to public offices against the relevantstatutory provisions; it also protects a citizen from beingdeprived of public office to which he may have a right. Itwould thus be seen that if these proceedings are adoptedsubject to the conditions recognized in that behalf, they tend toprotect the public from usurpers of public office; in some cases,persons not entitled to public office may be allowed to occupythem and to continue to hold them as a result of the connivanceof the executive or with its active help, and in such cases, if thejurisdiction of the courts to issue writ of quo warranto isproperly invoked, the usurper can be ousted and the personentitled to the post allowed to occupy it. It is thus clear thatbefore a citizen can claim a writ of quo warranto, he mustsatisfy the court, inter alia, that the office in question is apublic office and is held by usurper without legal authority, andthat necessarily leads to the enquiry as to whether theappointment of the said alleged usurper has been made inaccordance with law or not. “ 7. This court, thus feels it appropriate to examine whether theoffice of “CPSCM” being held by respondent no. 5 is a ‘public office’.Elections for electing representatives to the State General Assembly wereheld in the month of February, 2017. On March 16, 2017 the Chief Ministertook reins of the State Government alongwith Council of Ministers.Thereafter, normal process for putting in place administrative machinerywas undertaken. Respondent no. 2 is a cadre controlling authority for theIAS and other Secretarial Services in the Central Secretariat. Respondentno. 3 deals with the matters relating to Council of Ministers in PunjabGovernment as well as constitution of Committees, Sub-Committees ofCouncil of Ministers and coordinate work amongst them. Respondent no. 4i.e. the Chief Secretary is primarily concerned with Personnel, GeneralAdministration, Vigilance, Investment and Promotion and is de jure head ofthe civil services under the Punjab Government. Petitioner is aggrieved byintrusion of a non-cadre officer in the administrative machinery of the State.Said respondent namely Suresh Kumar has been impleaded as respondentno. Respondent no. 4i.e. the Chief Secretary is primarily concerned with Personnel, GeneralAdministration, Vigilance, Investment and Promotion and is de jure head ofthe civil services under the Punjab Government. Petitioner is aggrieved byintrusion of a non-cadre officer in the administrative machinery of the State.Said respondent namely Suresh Kumar has been impleaded as respondentno. 5 in this petition, a 1983 batch IAS Officer of Punjab Cadre whosuperannuated as Additional Chief Secretary (Development) in April, 2016.He has now been appointed as Chief Principal Secretary to Chief Minister.Petitioner seeks a writ in the nature of quo-warranto to oust him from thepost. In response to the petition preferred by the petitioner, a detailed replyby way of an affidavit has been filed by Karan Avtar Singh, Chief Secretaryto Government of Punjab. It has been stated therein that provisions of theConstitution of India and executive power of the State is co-extensive withits legislative power. Thus, State is fully competent to create a postdepending upon its requirement. Instant post has been created to meet therequirement of the work of the Chief Minister’s Secretariat. Respondent no.5 had been appointed to the post to oversee the functioning thereof. It hasbeen emphasized that conceptually the Chief Minister’s Secretariat wasdifferent from the administrative department of the State Government. Itwas prerogative of the Chief Minister to appoint anybody in whom he hasconfidence to supervise the functioning of the CM Secretariat. In reply theChief Secretary has referred to certain appointments of similar nature madeby Government of India as well as State of Gujarat. However, reference tosuch notifications need not be dealt by this court. Bare perusal thereofshows that same have been made in exercise of powers vested in theGovernment under certain statutory Rules. Besides, it appears that samewere never subject matter of challenge before any court. In the absence ofchallenge, it is not possible to comment on validity thereof. 8. As regards appointment impugned in the instant case, it hasbeen mentioned in the noting, Annexure R-3 dated 16.03.2017 initiated bySecretary Personnel that the State Government had a very ambitiousmanifesto. To fulfill commitments made therein, regular monitoring wouldbe required, for this purpose CMO’s involvement and guidance in finalizingthe plans and schemes would be crucial and essential. To achieve this, thecapacity of Chief Minister’s Office would be required to be enhanced byappointing a senior, experienced and retired IAS officer. To fulfill commitments made therein, regular monitoring wouldbe required, for this purpose CMO’s involvement and guidance in finalizingthe plans and schemes would be crucial and essential. To achieve this, thecapacity of Chief Minister’s Office would be required to be enhanced byappointing a senior, experienced and retired IAS officer. Thus, enrichedexperience of Shri Suresh Kumar across the departments and internationalorganizations would immensely help the State Government in general andCMO in particular. The letter outlines that the pay and allowances wouldbe same as that of Cabinet Secretary to Government of India minus pensionplus D.A. i.e. level 18 in the pay-matrix given in schedule to the IndianAdministrative Service (Pay) Rules, 2016; as also governmentaccommodation, LTC and medical facilities as per the entitlement ofCabinet Secretary. It provides that the incumbent (respondent no. 5) wouldexercise all powers vested in the post of Principal Secretary to the ChiefMinister. It was further directed that Cabinet Memorandum seekingapproval for terms and conditions of service with regard to ‘CPSCM’ beplaced before the CMM in the first meeting itself. A perusal of recordshows that on the same day i.e. 16.03.2017 a proposal was prepared and putup before the Finance Department. 9. The Chief Secretary states in the affidavit that FinanceDepartment stipulated that one post of IAS be kept vacant so that salary ofrespondent no. 5 after appointment in Chief Minister’s office on contractbasis could be drawn against the said post. As regards meeting of CMM,noting file only shows that same was held, however, minutes are not onrecord. According to State, para 2.0 of the proposal was approved but thiswould not mean that appointee had been appointed to that post against whichsalary was being drawn. This interpretation, according to affidavit, has to bedrawn from the terms and conditions of appointment which is contractualand not from the source of salary. According to affidavit, merely becauseone post of IAS cadre had been kept vacant, would not imply thatrespondent no. 5 had been appointed against a cadre post. Para 4 of theaffidavit is reproduced below for ready reference:- “4. That the assertion which is being made by the petitioner tocanvass before this Hon’ble Court that the Respondent no. 5has been appointed against a cadre post, is by placing relianceon any observation of the Finance Department mentioned inAnnexure P-7. 5 had been appointed against a cadre post. Para 4 of theaffidavit is reproduced below for ready reference:- “4. That the assertion which is being made by the petitioner tocanvass before this Hon’ble Court that the Respondent no. 5has been appointed against a cadre post, is by placing relianceon any observation of the Finance Department mentioned inAnnexure P-7. In that regard, it is submitted that before a postis created the concurrence of the Finance Department isnecessary in respect of the salary and other perks to be paid tothe person who is to be appointed. It is in this respect that theFinance Department had said that one post of the IAS be keptvacant and the salary of Respondent no. 5 after theappointment in the Chief Minister’s secretariat on a contractbasis, can be drawn against the said post. There are a largenumber of cases, where the salary of the appointees is drawnagainst another posts which are lying vacant. That does notmean that the appointee becomes appointed to the post fromwhere the salary is being drawn. The appointment is to beseen as per the terms and conditions of the appointment andnot in respect from where the salary of a person is coming.Therefore, the reliance being placed by the petitioner onAnnexure P-7 to contend that as one post of IAS cadre is beingkept vacant, therefore, the appointment of respondent no. 5 ison a cadre post, is not at all correct and is liable to berejected.” 10. A perusal of record shows that an office noting dated16.03.2017 was prepared by Secretary Personnel and marked to ChiefSecretary who in turn presented it before the Chief Minister. The office ofthe Chief Minister observed that “Finance Department may kindly give theirconcurrence.” Relevant para of the office noting which is necessary fordecision of this case is reproduced herein under:- “The Chief Minister vide his orders dated 16.03.2017has appointed Sh. Suresh Kumar, IAS (Retd.) with immediateeffect as Chief Principal Secretary to Chief Minister, Punjab inthe pay scale of Cabinet Secretary to Govt. of India. The C.M.has desired that the formal orders be issued accordingly.Further, he has also directed that a copy of the CabinetMemorandum seeking approval for the terms and conditions ofservice with regard to Sh. Suresh Kumar, IAS (Retd.) be alsoplaced before the Council-of-Ministers in its first meeting. 2. of India. The C.M.has desired that the formal orders be issued accordingly.Further, he has also directed that a copy of the CabinetMemorandum seeking approval for the terms and conditions ofservice with regard to Sh. Suresh Kumar, IAS (Retd.) be alsoplaced before the Council-of-Ministers in its first meeting. 2. In this regard it is apprised that the new StateGovernment has taken over on 16.3.2017 after the conclusionof Assembly Elections, recently conducted in the State. TheChief Minister vide his order dated has appointed Sh.Suresh Kumar, IAS (Retd.) as Chief principal Secretary toChief Minister in the pay scale of Cabinet Secretary toGovernment of India. The Chief Minister also directed that aCabinet Memorandum seeking approval for the terms andconditions of service with regard to Sh. Suresh Kumar, IAS(Retd.) as Chief Principal Secretary to Chief Minister, Punjabbe placed before the CMM in its first meeting itself. 1.1 It may be seen that the new State Government has a veryambitious manifesto. To fullfill the commitments made in themanifesto, a comprehensive planning and regular monitoringwould be required. Foir the purpose, the Chief MinisterOffice’s involvement and guidance in finalizing the plans andschemes would be very crucial and essential. To achieve this,the capacity of Chief Minister’s office would require to beenhanced by appointing a senior, experienced and retired IASofficer. 1.2 Sh. Suresh Kumar, IAS (Retd.) is of 1983 batch of IndianAdministrative Service of Punjab cadre. He retired from theservice as Additional Chief Secretary after attainingsuperannuation on 30.4.2016. Sh. Suresh Kumar has vastexperience of working in various departments of the StateGovernment, Government of India, United Nations apart fromhaving the experience of working as Principal Secretary toChief Minister. His enriched experience across thedepartments and International organizations will immenselyhelp the State Govt. in general and Chief Minister Office inparticular. 3. xxxxx xxxxx xxxxx” 11. Perusal of file shows that all terms relating to job profile andtenure, pay and allowances, government accommodation, leave/LTC,medical facilities etc. were specified in original noting. It was alsoproposed to appoint respondent no. 5 in the pay and rank of CabinetSecretary and at level 18 of pay matrix issued by Government of India. 12. On 16.03.2017 itself, an order was issued appointingrespondent no. 5 as ‘CPSCM’. Relevant part thereof reads as under:- “Shri. Suresh Kumar, IAS (Retd.) is hereby appointed withimmediate effect as Chief Principal Secretary to the ChiefMinister, Punjab in the pay scale of the Cabinet Secretary toGovernment of India. Formal orders be issued accordingly. 12. On 16.03.2017 itself, an order was issued appointingrespondent no. 5 as ‘CPSCM’. Relevant part thereof reads as under:- “Shri. Suresh Kumar, IAS (Retd.) is hereby appointed withimmediate effect as Chief Principal Secretary to the ChiefMinister, Punjab in the pay scale of the Cabinet Secretary toGovernment of India. Formal orders be issued accordingly. ACabinet Memorandum seeking approval for the terms andconditions of service with regard to Sh. Suresh Kumar, IAS(Retd.) be also placed before the CMM in its very firstmeeting.” 13. Pursuant to aforesaid order, petitioner assumed charge on17.03.2017. The report reads as under:- “I, Suresh Kumar, IAS (Retd.) have today in the afternoon,assume the charge of the post of Chief Principal Secretary tothe Chief Minister, Punjab in compliance with PunjabGovernment, Department of General Administration(Secretariat Establishment-V Branch) order dated 17th March2017, issued vide No. 1/35/2017-IE5/2464 dated 17th March,2017” 14. In para 6 of the affidavit filed by Karan Avtar Singh, ChiefSecretary to Government of Punjab, it is vehemently denied that any powerof the Chief Minister had been delegated to any one, much less torespondent no. 5. The affidavit adds that under the Rules of Business ofGovernment of Punjab, 1992, delegation is to all the Ministers-in-Charge ofthe department and Chief Minister is also the Minister-in-Charge of variousdepartments apart from being the Chief Minister of the State. He, thus,issued the Standing Order, Annexure R-4 providing for distribution of workin the CMO. It has been denied that same can be considered as delegationof work. In the written arguments submitted on behalf of the State,however, an effort has been made to explain that delegation of powersvested in Chief Minister, if any, cannot be subject matter of judicial review.This court shall deal with this issue in the later part of this judgment. It hasbeen further stated that Principal Secretary to Chief Minister is a cadre postand is manned by an IAS officer. There is, however, no explanationforthcoming in the order, Annexure P-4 why respondent no. 5 has beenempowered to exercise all powers vested in the Principal Secretary which isa ‘cadre post’. From the affidavit of Chief Secretary, it appears that Stateeither lacks clarity on the issue or is not able to substantiate its stand thatrespondent no. 5 is not working against a post meant for a cadre officer.The affidavit further makes reference to the Standing Order issued on16.03.2017. From the affidavit of Chief Secretary, it appears that Stateeither lacks clarity on the issue or is not able to substantiate its stand thatrespondent no. 5 is not working against a post meant for a cadre officer.The affidavit further makes reference to the Standing Order issued on16.03.2017. This court finds it necessary to reproduce the same hereinbelow for ready reference:- “Annexure R-4 (Chief Minister’s Office, Punjab) STANDING ORDERS In pursuance of the provisions of Rule 18 and 19of the Rules of Business of the Government of Punjab, 1992,and in supersession of previous Standing Order, if any, it ishereby ordered that in respect of Chief Minister’s office, thecases/files mentioned below shall be submitted to the ChiefMinister, Punjab for his orders by the officers mentioned thereagainst. The powers vested in the Principal Secretary to CMshall be exercised by CPSCM, subject to mentions/details givenin attached statement, giving details oftasks/departments/branches assigned toPSCM/SPSCM/DPSCM and other officers. 2.0 During my absence from the headquarters, cases ofimmediate nature, which are required to be disposed of at mylevel and decisions on which cannot wait for my return orwhich cannot be sent to me during my tour for timely orders,shall, after discussing with me on my mobile phone, if possible,be disposed of by the Chief Principal Secretary. However, suchcases shall be put up to me on my return to headquarters forex-post facto approval. 3.0 Further for all such cases where a decision has beentaken by me, such a decision should be recorded on the file orconveyed to the Concerned Departments byCPSCM/PSCM/SPSCM only. Dated, Chandigarh, the Sd/- Chief Minister,Punjab” 15. As regards the work distribution amongst the Officers of CMO,a statement is attached to the Standing Order. It has been stipulated thatfiles pertaining to particular departments would be put up through‘CPSCM’. Dated, Chandigarh, the Sd/- Chief Minister,Punjab” 15. As regards the work distribution amongst the Officers of CMO,a statement is attached to the Standing Order. It has been stipulated thatfiles pertaining to particular departments would be put up through‘CPSCM’. Same reads as under:- “Shri Suresh Kumar, Chief Principal Secretary to Chief Minister The files of the below mentioned departments shallbe put up through Chief Principal Secretary to Chief Minister,Punjab:- (1) Home Affairs, Jails and Judicial (2) Vigilance; (3) Personnel; (4) Industries and Commerce; (5) INVESTMENT Promotion; (6) Finance and Planning’ (7) Information and Public Relations; (8) Administrative Reforms and Information Technology; (9) Governance Reforms; and (10) Parliamentary Affairs; Matters concerning Council of Ministers includingCabinet memorandums; Matters concerning appointment/ placements/transfers ofHeads of Department; All papers/matters/files received from CS forconsideration of CM; All papers/letters/files received from or going toGovernment of India or any other State, HE Governor ofPunjab and Vidhan Sabha; Matters requiring changes in legislations or subordinatelegislation; Matters aimed at reforms and changes in policies andprogrammes, matters aimed at administrative, financialand governance reforms, matters concerning negotiationsand approvals of externally aided projects and mattersinvolving inter-departmental issues or difference ofopinion; Residual matter, if any, not specified in this order.” 16. A perusal of the record and the affidavit filed by ChiefSecretary shows that immense powers have been conferred on the newlycreated post of ‘CPSCM’ to take decisions with regard to importantdepartments such as Home, Vigilance, Personnel, Finance etc. Thestanding order issued on 16.03.2017 shows that ‘CPSCM’ has beenauthorized to dispose of cases of immediate nature during the absence of theChief Minister after discussing with him on mobile phone, if possible.However, such cases would be put up before the Chief Minister on his returnto headquarter for ex-post facto approval. It is, thus, clear that in theeventuality respondent no. 5 is not able to contact the Chief Minister in hisabsence from the headquarter, he would be authorized to take decision withregard to files pertaining to the departments enumerated in the statementattached to the standing orders. Such files may relate to departments ofHome, Vigilance, Personnel, Finance etc. In view of this power conferredon respondent no. 5, it is evident that he can take decisions as regardssovereign functions of the State. The stand taken during arguments thatrespondent no. 5 would work only as ‘staff officer’ is not borne out from therecord. Such files may relate to departments ofHome, Vigilance, Personnel, Finance etc. In view of this power conferredon respondent no. 5, it is evident that he can take decisions as regardssovereign functions of the State. The stand taken during arguments thatrespondent no. 5 would work only as ‘staff officer’ is not borne out from therecord. The standing order leaves no room for doubt that ‘CPSCM’ wouldtake all decisions in the absence of the Chief Minister from the headquarter,after discussion on mobile phone, if possible. It is evident that in theeventuality respondent no. 5 is not able to get through to the Chief Ministerhe would be at liberty to take appropriate decision. Though, provision of expostfacto approval has been incorporated in the Standing Order, it isobvious that such approval cannot be automatic. There can be situationswhere Chief Minister may not approve the decision taken by the CPSCM.However, by that time it may be difficult to redeem the situation created bysuch a decision. The fact remains that the Standing Order gives immensepowers to the ‘CPSCM’ to take decisions with regard to sovereign powersvested in the State. In such circumstances it is not possible for this court toaccept the plea of the State that respondent no. 5 does not hold a ‘publicoffice’ and is merely a ‘staff officer’. During the course of arguments, itwas emphasized on behalf of the State that ‘staff officer’ is merelyauthorized to put up the files before the Chief Minister and to assist in thefunctioning of the CMO. Besides, provision for ex-post approval was animportant safeguard incorporated in the Standing Order. As alreadyobserved above, there cannot be a presumption that all decisions taken by‘CPSCM’ during absence of the Chief Minister would get ipso factoapproval. The safeguard referred to by the State may prove futile in certaincircumstances. The plea that officer would not pass any order on his own,appears to be bereft of any substance as the Standing Order leaves enoughroom for the ‘CPSCM’ to take decisions in the situations mentioned therein. 17. The noting file was generated wherein it was clearly stated thatrespondent no. 5 would be appointed in the rank and pay-scale of CabinetSecretary, showing intention of the State to empower the officer to takeimportant decisions pertaining to affairs of the State. 17. The noting file was generated wherein it was clearly stated thatrespondent no. 5 would be appointed in the rank and pay-scale of CabinetSecretary, showing intention of the State to empower the officer to takeimportant decisions pertaining to affairs of the State. Had it been a case ofplain and simple appointment as a ‘staff officer’ appropriate pay-scale couldhave been specified in the appointment order without reference to the post ofCabinet Secretary. A perusal of the noting file, however, shows that there isrepeated reference therein to the rank and pay-scale of Cabinet Secretary toGovernment of India which undoubtedly is a post much higher in thehierarchy of members of Indian Administrative Services. If the veil is liftedand record pertaining to appointment of respondent no. 5 examined, ittranspires that true intent of the appointment as reinforced by the StandingOrder is to confer powers on him to take important decisions relating tofunctioning of the State, its sovereign powers as well. During the course ofhearing, a plea was raised by Mr. Ranjit Kumar that appointment of ‘staffofficers’ is usual in case of important functionaries including higherjudiciary while acting on the administrative side. According to him, this ispurely for the purpose of distribution of work and efficient handling of files.This court feels that the plea does not carry any weight as substantivepowers of the office are never delegated to staff officers. If any suchdelegation is made it would virtually amount to abdication of powers by theauthority obligated under law to exercise powers exclusively vested in it. Inthe instant case, respondent no. 5 has been given wide discretion to takedecisions in matters relating to affairs of the State. To hold that office heldby him is not a ‘public office’, would not only be absurd but against therecord. It was vehemently submitted before this court that appointment ofrespondent no. 5 was purely contractual in nature, thus, not amenable toquestion in a writ of quo-warranto. As already discussed above, at the timeof creation of the post of ‘CPSCM’, terms and conditions thereof were laiddown even before the approval of Council of Ministers. In the noting dated16.03.2017 it was clearly stated that respondent no. 5 would be appointed inthe rank and pay-scale of Cabinet Secretary. As already discussed above, at the timeof creation of the post of ‘CPSCM’, terms and conditions thereof were laiddown even before the approval of Council of Ministers. In the noting dated16.03.2017 it was clearly stated that respondent no. 5 would be appointed inthe rank and pay-scale of Cabinet Secretary. As directive was issued in thenoting file itself by the CMO to the effect that “Finance Department maykindly give their concurrence”, not much discretion was left with theFinance Department to take independent decision in the matter. There isnothing to show that Finance Department enjoys such autonomy as to ignorea directive of the nature aforesaid. In case the appointment was purelycontractual in nature to discharge ministerial functions, it was suffice to laydown the terms and conditions of appointment and pay-scale thereof. Butreference to the rank and pay-scale of Cabinet Secretary and a fixed tenuregiven to the office in question, makes it clear that the same is office ofimmense public importance. The fact that IAS Branch of State was asked tokeep one post of a member of Indian Administrative Services in abeyanceshows that one cadre post was kept vacant for accommodating respondentno. 5. Stand of the State as contained in the affidavit (para 4) of ChiefSecretary is on similar lines. It has not been denied therein that one post inthe IAS cadre had been kept in abeyance to draw salary for the newlycreated post. However, it has been explained away by saying that keeping apost in abeyance would not show that respondent no. 5 had been appointedagainst a cadre post. This court, on perusal of noting files, finds that adirective was issued to the Finance Department to concur with the proposal,simultaneously as the file for appointment of respondent no. 5 was moved.It is, thus, clear that one post in the cadre strength of IAS in the State waskept vacant to facilitate appointment of respondent no. 5. The speed andalacrity with which the file moved thereafter shows that appointment ofrespondent no. 5 was to play an important role in the decision making andfunctioning of the State. It appears that after this court was seized of thematter, the General Administration Branch in its noting dated 17.08.2017sought comments from the IAS Branch in order to prepare its affidavit to besubmitted before this court. It sought clarification as to whether the matterwas considered by the IAS Branch for keeping one post in abeyance in theIAS cadre. It appears that after this court was seized of thematter, the General Administration Branch in its noting dated 17.08.2017sought comments from the IAS Branch in order to prepare its affidavit to besubmitted before this court. It sought clarification as to whether the matterwas considered by the IAS Branch for keeping one post in abeyance in theIAS cadre. There is nothing on record to show that issue regarding keepingone post in abeyance was considered by the IAS Branch at any stage. Saidbranch, thus, requested that relevant files/documents be furnished to it.Relevant notings by the IAS Branch seeking clarifications from GeneralAdministration branch in this regard are reproduced below:- “Returned in original with a request that it is be clarified as to which parasof the writ petition relate to IAS Branch so that its appropriate reply couldbe given. It be also clarified as to on which point, the comments of IASBranch are required because the appointment and terms and conditions ofretired officer has been made by you 18.08.2017”Returned in original with a request to intimate as to whether after adviceof Finance department and before taking the matter in the meeting ofCouncil of Ministers, they had taken up the matter for keeping one post ofIAS cadre in abeyance? If yes, the relevant file be attached 18.08.2017Reg. ‘A’ at pre-page, it be clarified that there is no mention in these notingregarding taking up the matter with IAS branch regarding keeping one postof IAS cadre in abeyance. In this connection, it is once again requested thatrelevant file/documents be sent so that necessary comments could be given.”18.08.2017(translation from relevant record in vernacular) 18. The entire sequence of event shows that the file was dealt withpost haste. It appears that the file moved to and fro between IAS Branchand General Administration five/six times on the same day i.e. 18.08.2017.This clearly reveals that decision was taken in undue haste. Normalprocedure which would require application of mind and due considerationwas not followed. The concerned departments including the IAS Branch,which was to lose one post in its regular cadre, was kept in the dark aboutthe nature of appointment being made. This decision being simultaneouswith the decision to appoint respondent no. 5 as ‘CPSCM’, shows thatappointment of respondent no. 5 was made by keeping one post of IAS cadrein abeyance. The concerned departments including the IAS Branch,which was to lose one post in its regular cadre, was kept in the dark aboutthe nature of appointment being made. This decision being simultaneouswith the decision to appoint respondent no. 5 as ‘CPSCM’, shows thatappointment of respondent no. 5 was made by keeping one post of IAS cadrein abeyance. At the very inception of the file it was observed that the StateGovernment had a very ambitious manifesto and to fulfill the commitmentsmade therein, comprehensive planning and regular monitoring would berequired for which CMO’s involvement and guidance in finalizing the plansand schemes would be very crucial and essential. For this purpose a seniorexperienced and retired IAS officer would be required. Enrichedexperience of respondent no. 5 across the departments and internationalorganizations would immensely help the State Government in general andCMO in particular (Paras 1.1 & 1.2 of the noting dated 16.03.2017). 19. In view of notings and orders issued pursuant thereto, it isevident that one post of IAS cadre was kept in abeyance for appointment ofrespondent no. 5 and in view of important government functions assigned toit which would effect the general public, there is no escape from theconclusion that respondent no. 5 holds a ‘public office’. Observations madein judgment King vs. Speyer (1916) I K.B., 595 in context of ‘public office’are relevant:- “It is no doubt true that in early times quo warranto was confined to case ofencroachment upon the King’s prerogative and the writ was only issued atthe suit of the Crown. But as time went on the procedure developed, and itwas found that the writ itself was not a convenient method of dealing withall the cases which might arise under quo warranto, and informations in thenature of quo warranto came into use. The first instance of an informationof this sort is to be found in Rex v. Hertford Corporation (5), where therelator was a private person. That case also shows that quo warranto wasnot restricted to franchises and officers granted by the King: see also Rex v.Beedle (6); Rex v. Mein (7) Rex v. Boyles (8) shows that a quo warrantoinformation lies in respect of any office which concerns the public, althoughif the office be a very small one, such as the office of petit constable, theCourt may refuse to grant the information.” (emphasis applied) 20. It has already been held above that office held by respondentno. It has already been held above that office held by respondentno. 5 is of vital public importance and relates to governance of the State.Thus, there can be no doubt that same is ‘public office’. 21. This court finds it inexplicable why emphasis has been laid inthe noting file on “senior, experienced and retired IAS officer”. The use ofword ‘and retired’ in the noting makes it almost mandatory to appoint aretired IAS officer on the newly created post of “CPSCM”. No reason isforthcoming for this policy decision at the time of inception of file. It is,thus not clear why same functions could not have been performed by an inserviceofficer. Though State has liberty to choose a person in whom he canrepose faith to discharge duties on an important post, however, such a choicehas to be within the frame work of the Constitution as people have vitalinterest in the functioning of the Government for it affects their day to daylife. Due to creation of a new post, State was left with no option but to keepan existing post in the IAS cadre in abeyance to facilitate appointment ofrespondent no. 5. Stand taken by the State in its response to the writ petitionappears to supplement rather than support the reasons contained in theorders. This is not permissible in view of judgment of Hon’ble SupremeCourt in Mohinder Singh Gill vs. Chief Election Commissioner, New Delhi,1978 (1) SCC, 405. It has been laid-down therein that when a Statefunctionary makes an order on certain grounds its validity has to beadjudged by the reasons mentioned in the order and cannot be supplementedby fresh reasons in the shape of affidavit or otherwise. An order bad in thebeginning cannot be validated by additional grounds later brought out. Forthis reason, this court cannot permit the State to go beyond the record fileand orders passed therein. 22. Though the term of office of respondent no. 5 has a fixedtenure, a stand has been taken by the State that same is purely contractualand thus, has no public element attached to it. In this context observationof the Apex court in judgment reported as Kumari Shrilekha Vidyarthi & ors. vs. State of U.P. & ors, (1991) 1 SCC 212 are relevant:- “17. We are. therefore. 5 has a fixedtenure, a stand has been taken by the State that same is purely contractualand thus, has no public element attached to it. In this context observationof the Apex court in judgment reported as Kumari Shrilekha Vidyarthi & ors. vs. State of U.P. & ors, (1991) 1 SCC 212 are relevant:- “17. We are. therefore. unable to accept the argument of thelearned Additional Advocate General that the appointment ofDistrict Government Counsel by the State Government is only aprofessional engagement like that between a private client andhis lawyer, or that it is purely contractual with no publicelement attaching to it. which may be terminated at an), time atthe sweet will of the Government excluding judicial review. 18. We have already indicated the presence of publicelement attached to the ‘office’ or ‘post’ of District GovernmentCounsel of every category covered by the impugned circular.This is sufficient to attract Article 14 of the Constitution andbring the question of validity of the impugned circular withinthe scope of judicial review. The scope of judicial reviewpermissible in the present case, does not require any elaborateconsideration since even the minimum permitted scope ofjudicial review on the ground of arbitrariness orunreasonableness or irrationality, once Article 14 is attracted,is sufficient to invalidate the impugned circular as indicatedlater. We need not, therefore, deal at length with the scope ofjudicial review permissible in such cases since several nuancesof that ticklish question do not arise for consideration in thepresent case. 19. Even otherwise and sans the public element so obvious inthese appointments, the appointment and its concomitantsviewed as purely contractual matters after the appointment ismade, also attract Article 14 and exclude arbitrarinesspermitting judicial review of the impugned State action. Thisaspect is dealt with hereafter.” 23. Aforesaid judgment makes it amply clear that requirements ofArticle 14 are attracted in sphere of contractual appointments as well. Suchappointments would not exclude judicial review or be permitted to be madein an arbitrary manner. All executive actions of the State are subject tojudicial review and the plea that the same cannot be questioned beingcontractual is unacceptable. In democratic set up like ours, supremacy ofrule of law has to be acknowledged. Higher the dignitary, more objectivityis expected to be observed. While examining the validity of appointment ofa person to a high official position in the State hierarchy, this court iscompetent to consider whether a writ ‘in the nature’ of quo-warranto needsto be issued. In democratic set up like ours, supremacy ofrule of law has to be acknowledged. Higher the dignitary, more objectivityis expected to be observed. While examining the validity of appointment ofa person to a high official position in the State hierarchy, this court iscompetent to consider whether a writ ‘in the nature’ of quo-warranto needsto be issued. The words ‘in the nature’ enlarge the scope of inquiry in sucha writ. The superior courts are competent to issue not only writ of quo-warrantobut also a writ ‘in the nature’ of quo-warranto (See judgmentreported as N. Kannadasan vs. Ajay Khose & ors., 2009 (7) SCC Page 1).Even if it is assumed that the post in question is contractual in nature or atpleasure of the authority, this court would be entitled to examine legalitythereof during subsistence of the contract or the pleasure. For this, inconsidered view of this court, writ of quo warranto is the most appropriateremedy. Even if appointment is contractual, there can be no doubt that it beopen to challenge in a writ of quo-warranto if it is a ‘public office’. 24. For the same reason the plea of coram non-judice raised in thewritten arguments submitted by the State deserves to be out rightly rejected. Remedy of writ of quo-warranto is clearly available to the petitioner as thiscourt has already come to the conclusion that respondent no. 5 holds a‘public office’. Validity of such appointment can be examined only in awrit of quo-warranto as it is a proper remedy to test the right or title to anoffice and to remove or oust an incumbent. This writ is prosecuted against aperson who unlawfully usurps, intrudes or holds a public office (CorpusJuris Secundum 74 C.J.S. Quo Warranto, 14). This court, thus, rejects theplea of the State as regards coram non-judice. In case said plea has beenraised as the State feels that office of respondent no. 5 is not within thepurview of writ of quo warranto, same is not sustainable as this court hascome to firm conclusion that respondent no. 5 holds a “public office”. 25. Right of the petitioner to challenge the same being a citizen,also cannot be questioned, as it is settled that rule of locus standi does notapply to writ of habeas corpus and quo-warranto (see Vinoy Kumar vs. State of U.P. & ors., (2001) 4 SCC, 734). 26. This court now proceeds to decide the validity of appointmentof respondent no. 25. Right of the petitioner to challenge the same being a citizen,also cannot be questioned, as it is settled that rule of locus standi does notapply to writ of habeas corpus and quo-warranto (see Vinoy Kumar vs. State of U.P. & ors., (2001) 4 SCC, 734). 26. This court now proceeds to decide the validity of appointmentof respondent no. 5 in light of the Constitutional Scheme and Rules ofBusiness framed thereunder by the State Government. Part VI of theConstitution titled as “The States” incorporates various provisions as regardsgovernance of the State and the authorities entrusted with the task. Article154 of the Constitution provides that the executive power of the State wouldbe vested in the Governor and exercised by him either directly or throughofficers subordinate to him in accordance with the Constitution. Article 163provides that there would be a Council of Ministers with the Chief Ministeras the head, to aid and advise the Governor in exercise of his functions,except insofar as he is by or under this Constitution required to exercise hisfunctions or any of them in his discretion. Article 164 lays down that theChief Minister would be appointed by the Governor and other ministers onadvice of the Chief Minister and they would hold office during his pleasure.For conduct of business of the government of a State Article 166 has beenenacted. Same is reproduced hereunder:- “166. Conduct of business of the Government of a State –(1) All executiveaction of the government of a State shall be expressed to be taken in thename of the Governor. (2)Orders and other instruments made and executed in the name of theGovernor shall be authenticated in such manner as may be specified in rulesto be made by the Governor, and the validity of an order or instrumentwhich is so authenticated shall not be called in question on the ground thatit is not an order of instrument made or executed by the Governor. (3) The Governor shall make rules for the more convenient transaction ofthe business of the government of the State, and for the allocation amongMinisters of the said business in so far as it is not business with respect towhich the governor is by or under this Constitution required to act in hisdiscretion.” 27. The Constitutional scheme is, thus, devised in such a manner asto ensure smooth functioning of the State machinery. The Constitutional scheme is, thus, devised in such a manner asto ensure smooth functioning of the State machinery. For all intents andpurposes Chief Minister acts as head of the executive wing of theGovernment. Section 167 lays down duties of the Chief Minister as regardsfurnishing of information to the Governor. It provides that it would be theduty of each State to communicate to the Governor all decisions of theCouncil of Ministers relating to administration of the affairs of the State andproposal for legislation. If the Governor so requires, to submit forconsideration to Council of Ministers any matter on which a decision hasbeen taken by the Minister but which has not been considered by theCouncil. In State of Punjab, Rules of Business of Government of Punjab1992 (hereinafter to be referred as ‘1992 Rules’) have been made by theGovernor in exercise of powers conferred on him under Article 166(3) of theConstitution. Appointment of respondent no. 5 is stated to have been madeunder general executive powers of the State Government followed by aStanding Order dated 18.04.2017 issued in exercise of powers under Rules18 & 19 of the 1992 Rules. Said rules read as under:- “18. Except as otherwise provided by any other rule, cases shall ordinarilybe disposed of by or under the authority of the Minister-in-charge, who may,with the prior approval of the Chief Minister, by means of standing orders,give such directions as he thinks fit for the disposal of cases in theDepartment and copies of such standing orders shall be sent to the ChiefMinister and the Governor. Provided that if the Minister-in-charge is unable to dispose of the businessof his department for some time due to any reason, the Chief Minister maydirect the Chief Secretary to modify the existing standing orders of thedepartment or formulate fresh standing orders as the Chief Minister mayconsider appropriate. 19. Each Minister shall by means of standing orders, arrange with theSecretary, what cases or classes of cases are to be brought to his personalnotice and copies of such standing orders shall be sent to the Chief Ministerand the Governor.” 28. It is evident that the order dated 17.03.2017 was issued by theChief Minister appointing respondent no. 5 in pay-scale of Cabinet Secretaryto the Government of India with terms and conditions thereof to be notifiedlater, on approval of council of ministers. It appears the matter wasthereafter referred to CMM. It is evident that the order dated 17.03.2017 was issued by theChief Minister appointing respondent no. 5 in pay-scale of Cabinet Secretaryto the Government of India with terms and conditions thereof to be notifiedlater, on approval of council of ministers. It appears the matter wasthereafter referred to CMM. There is a mention in the noting file to theeffect “meeting held”. Thereafter, Chief Secretary gave a note as under:- “After considering the memorandum dated 17.03.2017 of generaladministration department, the proposals mentioned in para 2 have beenapproved.” 29. Immediately, thereafter a press note was issued informing thegeneral public that Shri Suresh Kumar had been appointed as CPSCM. Itneeds to be noticed here that had the post not been of vital publicimportance, there would have been no need to issue a press note. 30. It deserves mention that the Council of Ministers approved onlypara 2.0 of the proposal. As per stand of the State, Finance Department hadalready put a rider while concurring with the proposal that one post of IASin its existing strength be kept in abeyance. Same reads as under:- “The Finance Department concurs in the proposal of the AD withthe conditions that one post of IAS out of it’s existing strength maybe kept in abeyance.” 31. According to affidavit of the Chief Secretary (para 4),concurrence of Finance Department is necessary before a post is created todraw salary and other perks to be paid to such a person. In this respect theFinance department had directed that one post of IAS be kept vacant so as todraw salary of respondent no. 5 after his appointment in Chief Ministersecretariat on contract basis. According to State, this does not mean thatappointee had been appointed against the post from where salary is beingdrawn. Stand of the Chief Secretary needs to be considered in light of 1992Rules. Rule 7 thereof lays down that no department would issue any order,other than any general directions, without previous consultation with theFinance Department which either directly or by repercussion, would affectthe finance of the State. Rules 7(2) provides that no proposal which requiresprevious consultation of the department but in which the department has notconcurred, may be proceeded with unless a decision to that effect has beentaken by the Council. Rules 7(2) provides that no proposal which requiresprevious consultation of the department but in which the department has notconcurred, may be proceeded with unless a decision to that effect has beentaken by the Council. Relevant paras of said Rule are reproducedhereunder:- “7(I) No Department shall, without previous consultation withthe Department of Finance, issue any order (other than orderspursuant to any general delegation made by the Department ofFinance) which – a.either directly or by their repercussion will affect the finance of theState or which, in particular: i.involves any grant of land or assignment of revenue or concession,grant, lease or licence of mineral or forest rights or right towater, power of any easement or privilege in respect of such concession:or ii.in any way involves any relinquishment of revenue or b. relates to the number of grading or cadre of posts or the emoluments orother conditions or service or posts. (2) No proposal which requires the previous consultation with theDepartment of Finance under this rule, but in which the Department ofFinance has not concurred, may be proceeded with unless a decision to thateffect has been taken by the Council.” 32. On perusal of record it becomes clear that prior consultationwith the Finance Department was not done while deciding to create a post of”CPSCM” and laying down terms and conditions thereof. On the other handin the noting file generated at the inception in the CMO, it was directed thatFinance Department would concur with the proposal. It appears that noeffort was made to act in accordance with 1992 Rules. In case the order wasissued in exercise of the general executive powers of the State Government,pay-scale of Cabinet Secretary which would entail payment of salary,allowances, perks etc., prior consultation with the Finance Department wasrequired. The 1992 Rules further show that distribution of work can only bebetween Minister in-Charge and the Administrative Secretary and not to anyother person. Any delegation of the functions envisaged by the Rules, to aperson outside the framework thereof, would be against the Constitutionalscheme. There are certain functions which are entrusted to the electedrepresentatives of people who constitute the Council of Ministers. Saidfunctions which are sovereign in nature cannot be delegated to a person whodoes not have the mandate of the people. It may not be possible to delegatethese functions even to a cadre officer such as the Principal Secretary whomay not take substantive decisions outside his purview. Saidfunctions which are sovereign in nature cannot be delegated to a person whodoes not have the mandate of the people. It may not be possible to delegatethese functions even to a cadre officer such as the Principal Secretary whomay not take substantive decisions outside his purview. No extraconstitutional authority can be created to oversee the functioning of theaffairs of the State even for a short interregnum during absence of ChiefMinister. A perusal of the Standing Order, however, shows that it envisagescreation of such an authority. A bare reading of Rule 18 shows that fileswould ordinarily be disposed of by or under the authority of Minister in-Charge of the concerned department. Only in a situation when he is unableto dispose of business of his department for some time due to any reason, theChief Minister may direct the Chief Secretary to modify the existingStanding Order of the department or formulate fresh Standing Order as theChief Minister may consider appropriate. Rule 19 also vests power in eachMinister to frame Standing Orders to make internal arrangement with theAdministrative Secretary as regards cases or class of cases to be brought tohis personal notice, copies of which are required to be sent to the ChiefMinister and the Governor. It is possible that certain portfolios may beretained by the Chief Minister making him the Minister-in-Charge for thesaid department. In such circumstances, procedure envisage by Rules 18 &19 would be required to be followed. Internal arrangement can be madewithin the department for efficient discharge of business. The Rulesenvisage post of Principal Secretary in the CM Secretariat for this purposewhich is a ‘cadre post’. Newly created post of ‘CPSCM’ is neithercomprehended by the Rules nor is a ‘cadre post’. It is therefore inexplicablehow a person appointed as ‘CPSCM’ would exercise the powers vested inthe ‘Principal Secretary’ to the Chief Minister. There can be no doubt thatthe post of Principal Secretary is a cadre post as specified in the Schedule forPunjab State notified by Central Government under Indian AdministrativeServices (Fixation of Cadre Strength) Regulations, 1955. Needless to saythat had post of ‘CPSCM’ had not been created, Principal Secretary wouldipso facto exercise the powers vested in him. 33. The term ‘cadre officer’ is defined in the Indian AdministrativeServices Cadre Rules, 1954. Definition 2(a) specifies that ‘cadre officer’means a member of the Indian Administrative Services. Respondent no. 5having superannuated cannot be said to be a ‘cadre officer’. Needless to saythat had post of ‘CPSCM’ had not been created, Principal Secretary wouldipso facto exercise the powers vested in him. 33. The term ‘cadre officer’ is defined in the Indian AdministrativeServices Cadre Rules, 1954. Definition 2(a) specifies that ‘cadre officer’means a member of the Indian Administrative Services. Respondent no. 5having superannuated cannot be said to be a ‘cadre officer’. However, theappointment order and the Standing order dated 17.03.2017 give animpression that de facto cadre post is sought to be created by the State whichis unsustainable. As a cadre post of Indian Administrative Services has beenkept in abeyance to appoint respondent no. 5, it may amount to reduction ofone post in total strength of all India IAS Cadre. As Union of India has notmade its stand clear in this regard, this issue remains warped. 34. The factum of giving rank and status of Cabinet Secretary torespondent No. 5 conveys that he would be higher in rank to the ChiefSecretary which may create anomaly in the hierarchy of the AdministrativeSecretaries in the State. Besides, it is unusual for the State to authorize acontractual employee to exercise powers, sovereign in nature, even for alimited period i.e. during absence of the Chief Minister. There can be nojustification for this extraordinary empowerment apparently in violation ofprocedure and rules of business framed under Article 166(3) of theConstitution. 35. In view of the stand of the State that appointment of respondentno. 5 is contractual in nature, he would not be governed by any disciplinaryor other Rules. Having been entrusted with important sovereign functionsand having ceased to be a public servant, it is inexplicable how such aappointee can be held accountable for the decisions taken by him. Todischarge functions of this nature, post of Principal Secretary to CM is inexistence which is normally held by a cadre officer. Such officer is boundby the oath of secrecy and amenable to disciplinary rules. Respondent no. 5himself held the post of Principal Secretary during the previous tenure of thesame dispensation. However, in view of complete lack of control on thenewly created post of CPSCM, appointment thereto cannot be sustainedbeing against the Constitutional scheme. Record shows that over-ridingpowers have been vested in the post of CPSCM. Even consultation with theMinisters and the Administrative Secretaries is not necessary in view ofpowers bestowed on him by virtue of the Standing Order. However, in view of complete lack of control on thenewly created post of CPSCM, appointment thereto cannot be sustainedbeing against the Constitutional scheme. Record shows that over-ridingpowers have been vested in the post of CPSCM. Even consultation with theMinisters and the Administrative Secretaries is not necessary in view ofpowers bestowed on him by virtue of the Standing Order. It is not difficultto envision a situation where the State is plunged into crisis by a decisiontaken by such appointee because he cannot be expected to have, despite hislong career as a bureaucrat, same vision for the development of the State asthe Chief Minister who enjoys the mandate of the general populace and isanswerable to them for his decisions. Accountability is sine qua non ofappointment in public services which is altogether missing in the instantcase. Any lapse on part of respondent no. 5, intentional or unintentional,cannot be questioned by any disciplinary authority. He is also not bound bythe oath of secrecy, having superannuated from regular service. It is also notclear why, in the absence of Chief Minister, next senior most Minister or theMinister in-Charge would not assume command and authorized to takeimportant decisions. There can be no justification for vesting this extraordinarypower in ‘CPSCM’ apparently in violation of the procedure andrules of business envisaged by Article 166(3) of the Constitution. An effortwas made during the course of arguments to argue that the provisions ofArticle 166 are merely directory in nature and not mandatory in view ofjudgment of the Apex court in R. Chitralekha & Anr vs State Of Mysore & Ors.,1964 AIR 1823.However, this contention has no substance in view ofjudgment in MRF Limited vs. Manohar Parrikar & ors.,[2010(3) Law Herald (SC) 1892] : (2010) 11 SCC 374 wherein it has been held that in Chitralekha’s case provisions of Article166(3) were not under consideration. Relevant paras thereof are reproducedhereunder:- “77. The decision of the Constitution Bench in Chitralekha hasbeen misinterpreted. In that case this Court was considering acontroversy in regard to an order which was not expressed in thename of the Governor in terms of Article 166(1) and (2). In thatcontext, this Court observed that it is a settled law that theprovisions of Article 166 of the Constitution are only directoryand not mandatory in character. In that case this Court was considering acontroversy in regard to an order which was not expressed in thename of the Governor in terms of Article 166(1) and (2). In thatcontext, this Court observed that it is a settled law that theprovisions of Article 166 of the Constitution are only directoryand not mandatory in character. The context clearly shows thatthe observation that the provisions of Article 166 of theConstitution are only directory and not mandatory, referred onlyto clauses (1) and (2) of Article 166 and did not refer to clause (3)which was not under consideration at all. Chitralekha, therefore,cannot be relied upon to support the contention that BusinessRules made under clause (3) of Article 166 are directory. 78. We have earlier referred to all the decisions on which reliancewas placed by learned senior counsel Shri F.S. Nariman. In ourview, those decisions would not assist the appellant, since theywere all rendered in the context of interpretation of Article 166(1)and (2) of the Constitution. 79. xxxx xxxx xxxx xxxx xxxx xxxx 107. Thus from the foregoing, it is clear that a decision to be thedecision of the Government must satisfy the requirements of theBusiness Rules framed by the State Government under theprovisions of Article 166(3) of the Constitution of India. In thecase on hand, as have been noticed by us and the High Court, thedecisions leading to the notifications do not comply with therequirements of Business Rules framed by the Government of Goaunder the provisions of Article 166(3) of the Constitution and theNotifications are the result of the decision taken by the PowerMinister at his level. The decision of the individual Ministercannot be treated as the decision of the State Government and theNotifications issued as a result of the decision of the individualMinister which are in violation of the Business Rules are void abinitio and all actions consequent thereto are null and void.” 36. It is, thus evident that provisions relating to Article 166(3) aremandatory in nature and Rules framed thereunder need to be followed inletter and spirit. As Chapter VI of the Constitution lays down entireprocedure for governance of the State and Article 166(3) is a vital partthereof, it is difficult to imagine a situation where action of the State inviolation of the Rules framed thereunder, would be upheld by this court. As Chapter VI of the Constitution lays down entireprocedure for governance of the State and Article 166(3) is a vital partthereof, it is difficult to imagine a situation where action of the State inviolation of the Rules framed thereunder, would be upheld by this court. Ingamut of arguments a reference was also made to doctrine of pleasure andwhether same is applicable to the instant case. It is well settled that doctrineof pleasure cannot be interpreted to mean that State can act arbitrarilyignoring the public good and democratic principles as enshrined in theConstitution. In B.P. Singhal vs. Union of India,[2010(4) Law Herald (SC) 2388] : (2010) 6 SCC 331 , theApex Court held as under:- 22. There is a distinction between the doctrine of pleasure as itexisted in a feudal set-up and the doctrine of pleasure in ademocracy governed by rule of law. In a nineteenth century feudalset-up unfettered power and discretion of the Crown was not analien concept. However, in a democracy governed by Rule of Law,where arbitrariness in any form is eschewed, no Government orAuthority has the right to do what it pleases. The doctrine ofpleasure does not mean a licence to act arbitrarily, capriciouslyor whimsically. It is presumed that discretionary powersconferred in absolute and unfettered terms on any public authoritywill necessarily and obviously be exercised reasonably and forpublic good. 24. It is of some relevance to note that the ‘Doctrine of Pleasure’in its absolute unrestricted application does not exist in India. Thesaid doctrine is severely curtailed in the case of governmentemployment, as will be evident from clause (2) of Article 310 andclauses (1) and (2) of Article 311. Even in regard to cases fallingwithin the proviso to clause (2) of Article 311, the application ofthe doctrine is not unrestricted, but moderately restricted in thesense that the circumstances mentioned therein should exist for itsoperation. The Canadian Supreme Court in Wells v. Newfound land, [1999 (177) DL (4th) 73(SCC)] has concluded that “atpleasure” doctrine is no longer justifiable in the context of modernemployment relationship.” 37. The Canadian Supreme Court in Wells v. Newfound land, [1999 (177) DL (4th) 73(SCC)] has concluded that “atpleasure” doctrine is no longer justifiable in the context of modernemployment relationship.” 37. This court can further draw support from dictum in judgmentreported as King vs. Speyer (supra) in which it has been held as under:- “The maxim “The King can do no wrong,” which is sometimesmisunderstood, and which only means that His Majesty individually andpersonally and in his natural capacity is independent of, and not amenableto, any other earthly power or jurisdiction, has no application to the presentcase. The King is the fountain head of justice, and the power of declaringhis laws is entrusted to his judges. It is a fundamental general rule that theKing cannot sanction any act forbidden by law. It is in that point of viewthat His Majesty is under and not above the laws, that he is bound by themequally with his subjects: see Chitty’s Prerogatives of the Crown, p.5, andBracton, bk. 1, ch. 8; and it has been held that a grant from the Crowncontravening the statute law is void: see Shiffner v. Gordan.(1)” 38. Apart from the observations herein above, aforesaid judgmentsmake it clear that even if office is held during the pleasure of the sovereign,it would not place it beyond the scope of challenge in a writ of quo-warranto.The court would be at liberty to examine the validity of anappointment even during the subsistence of the pleasure or contract, as thecase may be. Pleasure Doctrine, may, in any case, be not attracted toappointment of this nature as same has not been made in the name of theGovernor. It is incomprehensible why the file having been formally moved,was not sent to the Governor. Had this been done, it would have ensuredcompliance of Rules 8 and 9 of 1992 Rules. In that case order would havebeen in the name of Governor. However, stand of the State is that order wasauthenticated by the Chief Secretary. In considered view of this court, mereauthentication would not make the order valid, 1992 Rules being mandatoryin character. If the State had proceeded as per the Rules, necessity ofexplaining its stand by way of affidavits would have been obviated, apractice which is otherwise against the spirit of Mohinder Singh’s case(supra). 39. In considered view of this court, mereauthentication would not make the order valid, 1992 Rules being mandatoryin character. If the State had proceeded as per the Rules, necessity ofexplaining its stand by way of affidavits would have been obviated, apractice which is otherwise against the spirit of Mohinder Singh’s case(supra). 39. Plea taken in the written arguments on behalf of respondentsthat no post of IAS cadre had been kept in abeyance is contradictory to standtaken by Chief Secretary in his affidavit (para 4). The judgment in E.P. Royappa vs. State of Tamil Naidu, AIR 1974 SC 555 , referred therein, is notapplicable as in said case issue was regarding power of State Government tocreate a temporary additional post in the IAS cadre. Other judgment reliedupon in the written arguments need not be adverted to in view of factualdistinction of this case. 40. No response has been filed by Respondent No. 5 despite thefact that the writ of quo-warranto is primarily directed against the usurper ofoffice (King vs. Speyer - supra page 628). Instead State has tried to justifyhis appointment. In B.R. Kapur vs. State of Tamil Naidu, (2001) 7, SCC231, the Apex court had held that quo warranto lies against a person who iscalled upon to establish his legal entitlement to hold the office in question.In case he fails to prove a valid authority to hold such office, writ of quowarranto would be directed against him. Having considered the entireconspectus of the matter, this court finds that respondent no. 5 is holding a‘public office’ without authority of law and in clear violation of theConstitutional scheme, particularly Article 166(3) and rules framedthereunder. Thus, the appointment of respondent no. 5 is held to be void.Same is hereby set-aside. Petition is accordingly allowed. Record bereturned to the State counsel after retaining a copy thereof.