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Meghalaya High Court · body

2022 DIGILAW 148 (MEG)

Salgira R. Marak v. State of Meghalaya

2022-06-07

H.S.THANGKHIEW

body2022
JUDGMENT 1. The instant writ proceeding is a second round of litigation, wherein the petitioner is before this Court. In the earlier round vide WP(C) No. 382/2019, the petitioner had challenged two notifications bearing No. SG.12/97/169 and SG.12/97/170 both dated 08.08.2019, whereby the State respondents had created a post of Officer on Special Duty (OSD), personal to the petitioner in the Administrative Department of the Printing and Stationery Department. This Court by judgment and order dated 17.09.2020, allowed the writ petition and quashed the impugned orders as being unsustainable in law. The State respondents thereafter, preferred a Writ Appeal being W.A No. 20/2020, which was however disposed of on withdrawal on the ground that two fresh notifications both dated 09.11.2020, had been issued, one, whereby a post of OSD was shown to have been created in the Administrative Department and by the second, the petitioner stood transferred from the post of Director, Printing and Stationery Department to the post of OSD (Technical) in the Administrative Department of Printing and Stationery. The said two notifications dated 09.11.2020, have now been impugned by way of this writ petition. 2. It has been contended by the petitioner that the impugned notifications both dated 09.11.2020, amount to an overreach/or sitting in appeal over the earlier judgment dated 17.09.2020 passed in WP(C) No. 382/2019, inasmuch as, these notifications had been issued in partial modification and in continuation of the earlier notifications dated 08.08.2019, which had been set aside and quashed by this Court. On this count alone, it has been submitted that the notifications presently under challenge are liable to be set aside and quashed. 3. Apart from the above noted main ground of challenge, Mr. U.K. Nair, learned senior counsel for the petitioner submits that the impugned notifications creating a post of OSD (Technical) in the Senior Grade of the Printing and Stationery (Technical Grade), is untenable as the Senior Grade is a cadre in itself and as per Rule 4(2) of the Printing and Stationery (Technical) Service Rules, each post forms an independent cadre and movement from one cadre to another must be in accordance with rules. It is also submitted that Rule 7 of the rules which provides for the method of recruitment and the manner in which posts in different cadres are to be filled up, does not permit or provide for such appointment, that is of OSD (Technical) in the Senior Grade. 4. It has also been argued by the learned senior counsel that the manner of recruitment as given in the second paragraph of the notification dated 09.11.2020, prescribing the manner of recruitment to the post of OSD (Technical) is beyond the powers conferred under Rule 6(1) of the rules and that the creation of the post of OSD (Technical) is not specifically mentioned and incorporated in the cadre of Director of Printing and Stationery. He submits the fact that the post of OSD (Technical) was created in the Senior Grade and not in the cadre of Director, is clear from Paragraph-4 of the impugned notification, whereby strength of the cadre after the alleged creation of the post of OSD has been increased to 8 (eight). It has also been urged that the post of OSD (Technical) was not created for the Directorate Service, but created for the service in the Administrative Department which he contends is governed by another set of rules and not by the service rules applicable to the petitioner. 5. The learned senior counsel has placed reliance on various judgments of the Hon'ble Supreme Court in support of the above noted contentions, where it has been held that an inter-parte judgment of a competent court of law cannot be said at naught or over-ruled by an executive fiat. He concludes by submitting that the entire action of the respondents is to oust the petitioner from the post of Director, which has resulted in the complete violation of the rules and also amounts to sitting on appeal over the earlier judgment of this Court, which is impermissible. Accordingly, he prays that the impugned notifications be set aside and quashed. 6. Learned Advocate General, in reply to the submissions and contentions of the counsel for the petitioner submits that both the impugned notifications dated 09.11.2020, have been passed under Rule 6(1) of the Service Rules amending the composition and strength of service of the department and as such, has removed the basis of the judgment and order rendered by this Court on 17.09.2020. The same he contends, are valid and are not hit by the said judgment of this Court, and in fact, has removed the defect in the earlier notification which had been pointed out by this Court. It is contended that the creation of the post of OSD (Technical) is in accordance with Rule 6(1) of the rules, thereby altering the strength and composition of service in the Printing and Stationery Department which is to be filled up by way of transfer from the post of Director, Printing and Stationery or an equivalent post in the cadre. It is also submitted that the said post is no longer made personal to the petitioner but also provides that the said post is a Senior Grade post. 7. It is further submitted that in exercise of the rule making power conferred under Article 309 of the Constitution of India, the defects pointed out by this Court vide judgment dated 17.09.2020, have been removed by creating the post of OSD (Technical) after altering the strength and composition of service, and this creation is also in the nature of a policy decision based on administrative consideration. The transfer of the petitioner to the newly created post it is argued, does not amount to deputation of the petitioner to an external department as the petitioner would continue to be governed by the department of Printing and Stationery. It is lastly submitted that, transfer is an incidence of service and that the petitioner has no vested right to remain in the post of Director, Printing and Stationery Department. 8. Heard learned counsel for the parties. In the earlier round of litigation that is WP(C) No. 382/2019, this Court by judgment and order dated 17.09.2020, had quashed and set aside notifications No. SG.12/97/169 and SG.12/97/170 both dated 08.08.2019, on the ground that the same were unsustainable in law, as the same was issued in violation of statutory rules. The notification No. SG.12/97/169 dated 08.08.2019, sanctioned the creation of one post of OSD personal to the petitioner in the administrative department and by notification No. SG.12/97/170, the petitioner was appointed as OSD in the said administrative department. 9. The notification No. SG.12/97/169 dated 08.08.2019, sanctioned the creation of one post of OSD personal to the petitioner in the administrative department and by notification No. SG.12/97/170, the petitioner was appointed as OSD in the said administrative department. 9. The impugned notifications herein, being No. SG.12/97/238 and SG.12/97/239 both dated 09.11.2020, were issued with the same objective that is the creation of one post of OSD (Technical) in the administrative department and the transfer of the petitioner to the said post. However, the creation of the OSD (Technical) post is stated to be in exercise of powers conferred by Rule 6(1) of the Printing and Stationery (Technical) Service Rules, 1995, in the Senior Grade of the Printing and Stationery (Technical) cadre. The said notification for the sake of convenience is reproduced herein below: GOVERNMENT OF MEGHALAYA PRINTING AND STATIONERY DEPARTMENT **** No.SG.12/97/238 Dated Shillong, the 9th November, 2020. From: Smti. O.D. Mairom. Under Secretary to the Govt. of Meghalaya. To The Director Printing and Stationery. Meghalaya, Shillong. Subject: Creation of 1(one) post of Officer on Special Duty (Technical). Ref:- NO.SG.12/97/169 dated Shillong, the 8th August, 2019. Sir, In exercise of powers conferred by sub-rule (1) of Rule 6 of the Printing and Stationery (Technical) Service Rules, 1995 and upon review of the administrative requirements of the Department of Printing and Stationery, the Governor of Meghalaya is pleased to sanction the creation of 1(one) post of Officer on Special Duty (Technical) in the Administrative Department in the scale of Pay Level 21, in the Senior Grade of the Printing and Stationery (Technical) Cadre of the Department of Printing and Stationery, Government of Meghalaya. The post of Officer on Special Duty (Technical) in the Administrative Department shall be filled by transfer, from the post of Director, Printing and Stationery or person holding equivalent post within the same cadre. The expenditure for the said post is debitable at par with all other posts in the cadre, under the head of Account 2058 STATIONERY AND PRINTING - 103- GOVT PRESSES (01) Press Administrative 01 Salaries - General 2020-2021. The sanctioned strength of the cadre after creation of the post of Officer on Special Duty (Technical) in the Administrative Department stands at 08. This partially modifies this Department's sanction letter issued vide NO. SG.12/97/169, dated 8th August, 2019. Yours faithfully Under Secretary to the Govt. of Meghalaya Printing and Stationery Department Memo. The sanctioned strength of the cadre after creation of the post of Officer on Special Duty (Technical) in the Administrative Department stands at 08. This partially modifies this Department's sanction letter issued vide NO. SG.12/97/169, dated 8th August, 2019. Yours faithfully Under Secretary to the Govt. of Meghalaya Printing and Stationery Department Memo. No.SG.12/97/238-A Dated Shillong, the 9th November, 2020. Copy forwarded to :- 1. Finance (E.C.I) Department with reference to their I/D No. FC(1) 108/2019-20 dated 19.7.2019. 2. Personnel & A.R. (A) Department with reference to their I/D No. 27/19 dated 15.5.19 3. Treasury Officer, Shillong South By Order etc., Under Secretary to the Govt. of Meghalaya Printing and Stationery Department Memo. No.SG.12/97/238-B Dated Shillong, the 9th November, 2020. Copy forwarded to :- 1. The Principal Accountant General (Audit) Meghalaya (Attention : CASS. Section) Shillong- 793001 2. The Accountant General (A & E), Meghalaya, Shillong By Order etc., Financial Adviser to the Govt. of Meghalaya Printing and Stationery Department 10. By notification No. SG.12/97/239 dated 09.11.2020, consequent to the creation of the said post OSD, the petitioner was transferred to this post. Notification No. SG.12/97/239 is reproduced herein below: GOVERNMENT OF MEGHALAYA PRINTING AND STATIONERY DEPARTMENT **** ORDERS BY THE GOVERNOR NOTIFICATION Dated Shillong, the 9th November, 2020. No.SG.12/97/239 - In continuation to Notification No. SG.12/97/170 dated 8th August, 2019 and consequent upon the creation of one post of Officer on Special Duty in the Administrative Department of the Printing and Stationery vide letter No. SG.12/97/169 dated Shillong the 8th August, 2019 with partial modification vide letter No. SG.12/97/238 dated Shillong the 9th November, 2020; the Governor of Meghalaya is pleased to transfer Shri. Salgira R. Marak, Director, Printing and Stationery, Meghalaya, Shillong to the post of Officer on Special Duty (Technical) in the Administrative Department of the Printing and Stationery Department in the scale of pay level 21 with effect from the date of taking over charge until further orders. (Smti. M. War Nongbri, IAS) Secretary to the Govt. of Meghalaya. Printing and Stationery Department. Memo No.SG.12/97/239-A Dated Shillong, the 9th November, 2020 Copy to:- 1. P.S. to Chief Minister, for kind information of the Chief Minister 2. P.S. to Minister Incharge Printing and Stationery Department for kind information of the Minister 3. P.S. to Chief Secretary for kind information of the Chief Secretary 4. P.A. to Commissioner & Secretary to the Govt. Memo No.SG.12/97/239-A Dated Shillong, the 9th November, 2020 Copy to:- 1. P.S. to Chief Minister, for kind information of the Chief Minister 2. P.S. to Minister Incharge Printing and Stationery Department for kind information of the Minister 3. P.S. to Chief Secretary for kind information of the Chief Secretary 4. P.A. to Commissioner & Secretary to the Govt. of Meghalaya P& S Department 5. P.A. to Secretary Printing and Stationery Department 6. Joint Secretary, Printing and Stationery Department 7. Director Printing & Stationery, Meghalaya, Shillong 8. The Accountant General (A & E) Meghalaya, Shillong 9. Personnel & A.R. (A) Department 10. Finance (E.C.I) Department. 11. Director Printing and Stationery, Meghalaya Shillong. He is requested to publish the above Notification in the next issue of the Meghalaya Gazette. 12. Treasury Officer, Shillong South 13. Nazir, Meghalaya (Civil) Secretariat for information and necessary action. 14. Joint Director Directorate Printing and Stationery, Meghalaya, Shillong. 15. Guard File. By order etc., Secretary to the Govt. of Meghalaya Printing and Stationery Department **** 11. On a bare perusal of these two notifications, firstly with regard to No. SG.12/97/238, the last para states that this notification partially modifies the departments sanctioned letter issued vide No. SG.12/97/169 dated 08.08.2019. The second notification No. SG.12/97/239 states that the transfer order has been issued in continuation of notification No. SG.12/97/170 dated 08.08.2019. The issuance of these two impugned notifications dated 09.11.2020, on the basis and in continuation of the earlier notifications dated 08.08.2019 is strange and though it has been submitted, that these notifications have removed the basis of the judgment of this Court dated 17.09.2020, it cannot be said to have achieved the same, for the basic reason that they have been issued in partial modification and in continuation of notifications that no longer exist as they have been quashed and set aside by this Court. 12. On the other aspect that is, whether the rules permit the creation of a post of OSD (Technical) in a Senior Grade of the Printing and Stationery (Technical Grade), it is noted that Rule 4(2) has provided that, each post form an independent cadre and movement from one cadre to another must be in accordance with the rules. Rule 7 of the rules provides the method of recruitment in which post in different cadres are to be filled up. Rule 7 of the rules provides the method of recruitment in which post in different cadres are to be filled up. Rule 4(1) and (2) and Rule 7(1) for the sake of convenience are reproduced herein below: '4. Composition of the Service :- (1) The service shall consist of the following grades and posts:- Printing and Stationery. (I) Senior Grade (1) Director (2) Jt. Director (II) Grade I Deputy Director (Printing), (III) Grade II - Asstt. Director (Printing). (2) The categories of posts in clause (i), (ii) and (iii) of Sub-rule (1) shall form an independent cadre. Members of the lower cadre shall not claim for appointment to any of the higher cadre except in accordance with the provisions made in these Rules. 7. Method of Recruitment:- (1) Appointment to the post of Director shall be made by promotion from amongst the confirmed Joint Director (Printing & Stationery) having the experience as specified in Schedule-II and included in the select list approved under Sub-rule (5) of Rule 10. Provided that if the appointing Authority is satisfied that suitable and technically qualified persons are not available for appointment by promotion, the post may be filled up by direct recruitment on the result of the examination conducted by the Commission or adopt such other method for appointment to the post.' 13. A perusal of Rule 4(1) shows that, the service consists of 3 grades with the post of Director and Joint Director being placed in the Senior Grade over Grade-I and Grade-II, and as per Rule 4(2) these posts formed an independent cadre. Rule 7 providing the method of recruitment does not speak of appointment to the post of a cadre of OSD (Technical) and moreover, the second paragraph of the impugned notification dated 09.11.2020, prescribing the manner of recruitment to the post of OSD does not find place in Rule 6(1) of the rules. The creation of the post of OSD (Technical) in the Senior Grade and not in the cadre of Director therefore, is highly questionable especially the fact that it is specifically given that the said post has been created in the Administrative Department. The creation of the post of OSD (Technical) in the Senior Grade and not in the cadre of Director therefore, is highly questionable especially the fact that it is specifically given that the said post has been created in the Administrative Department. This exercise by the respondents is a thinly disguised attempt to implement the earlier notifications dated 08.08.2019, in placing the petitioner in the Administrative Department at all costs and to keep him away from raising a legitimate claim to continue in the post of Director which he was occupying, by incorporating the manner of recruitment in the impugned notification dated 09.11.2020, which allows the filling up of the post of OSD (Technical) by way of transfer from the post of Director, Printing and Stationery. 14. In the realm of legislative action in rendering the decision of Court ineffective by removing defects, the same is usually resorted to by validating legislations, wherein the defects are removed with retrospective effect and the portions that had been declared as invalid by the concerned Court are then made valid and effective. In such exercises, the same has been held that it does not amount to encroachment into judicial powers as there is no prohibition against retrospective legislation but the same is subject to legislative competence. This position has been enunciated in the case of M/s Utkal Contractors and Joinery (P) Ltd. & Others. v. State of Orissa reported in 1987 (Supp) SCC 751, wherein in para-15 it has been held as follows: '15. The next question to be considered is whether the State while purporting to amend the Act has encroached upon the judicial power and set aside the binding judgment of this Court. We do not think that Mr Nariman was justified in contending so. The principles have been well established in a string of decisions of this Court, and we may briefly summarise as follows: 'The legislature may, at any time, in exercise of the plenary power conferred on it by Articles 245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law. There is no prohibition against retrospective legislation. The power of the legislature to pass a law postulates the power to pass it prospectively as well as retrospectively. That of course, is subject to the legislative competence and subject to other constitutional limitations. There is no prohibition against retrospective legislation. The power of the legislature to pass a law postulates the power to pass it prospectively as well as retrospectively. That of course, is subject to the legislative competence and subject to other constitutional limitations. The rendering ineffective of judgments or orders of competent courts by changing their basis by legislative enactment is a well known pattern of all validating acts. Such validating legislation which removes the causes of ineffectiveness or invalidity of action or proceedings cannot be considered as encroachment on judicial power. The legislature, however, cannot by a bare declaration, without more, directly overrule, reverse or set aside any judicial decision. Hari Singh v. Military Estate Officer [ (1973) 1 SCR 515 : (1972) 2 SCC 239 : AIR 1972 SC 2205 ], Government of A.P. v. Hindustan Machine Tools Ltd. [1975 Supp SCR 394 : (1975) 2 SCC 274 : AIR 1975 SC 2037 ], I.N. Saksena v. State of M.P. [ (1976) 3 SCR 237 : (1976) 4 SCC 750 : AIR 1976 SC 2250 ] and Misrilal Jain v. State of Orissa [ (1977) 3 SCR 714 : (1977) 3 SCC 212 : AIR 1977 SC 1686 ].' 15. However, it is also true as held by the Hon'ble Supreme Court that a binding judgment cannot be made ineffective with the aid of legislative power if the same is not a legislative enactment which displaces or removes the basis or foundation of the judgment and will have uniform application to a class or persons concerned with the subject. This has been laid down in the judgment of S.R. Bhagwat and Others v. State of Mysore reported in (1995) 6 SCC 16 , wherein in para-12 it has been held as follows: '12. It is now well settled by a catena of decisions of this Court that a binding judicial pronouncement between the parties cannot be made ineffective with the aid of any legislative power by enacting a provision which in substance overrules such judgment and is not in the realm of a legislative enactment which displaces the basis or foundation of the judgment and uniformly applies to a class of persons concerned with the entire subject sought to be covered by such an enactment having retrospective effect.................... judgments.' 16. judgments.' 16. Taking into account the above propositions of law, the action of the respondents, though seeking to maintain that the proviso to Article 309 of the Constitution allows the Governor to make rules regulating the recruitment and conditions of service in the absence of an Act, this ground is however, not available to the respondents as the impugned notifications can clearly be said to be an encroachment into a judicial pronouncement. The chain of events and facts as has been narrated and discussed above, does not warrant any further deliberation to arrive at a conclusion as to the legality of the impugned notifications. Attempts have been made by the State respondents to somehow present a case that the impugned notifications have been issued with due consideration and made with the objective to remove the defects of the earlier notifications which had been pointed out by this Court in the judgment dated 17.09.2020, and that the fresh notifications are no longer personal to the petitioner. However, the very fact that the impugned notifications categorically state that they have been passed in partial modification and in continuation of the notifications dated 08.08.2019, which have been quashed by this Court, leave little room for the State respondents to justify the impugned orders. 17. Accordingly, for the reasons aforementioned, the impugned notifications No. SG.12/97/238 and No. SG.12/97/239, both dated 09.11.2020 are set aside and quashed and the writ petition stands allowed. 18. Parties to bear their own costs.