Central Administrative Tribunal - Delhi
Prof. Ram Avatar Yadav S/O A. L. Yadav vs Union Of India Through on 25 February, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.75/2010 This the 25th day of February, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Prof. Ram Avatar Yadav S/O A. L. Yadav, R/O D-176, Ashok Vihar-I, Delhi-110052. Applicant ( By Shri P. P. Rao, Senior Advocate; Shri V. K. Rao, Senior Advocate and Shri Saket Sikri, Shri Vaibhav Kalra and Shri Om Prakash, Advocates ) Versus 1. Union of India through Under Secretary, Department of Higher Education, Vigilance Wing, Ministry of Human Resource Development, Shastri Bhawan, New Delhi-110001. 2. All India Council of Technical Education through Member Secretary, 7th floor, Chandra Lok Building, Janpath, New Delhi-110001. Respondents ( By Shri Rakesh Dwivedi, ASG; Shri Parag Tripathi, ASG and Shri Amitesh, Ms. Preetika Dwivedi, Shri Ravi Kant, Shri Mayank Manish and Shri Shantanu Krishna, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Prof. R. A. Yadav, who had been Professor at the Faculty of Management Studies, University of Delhi from June, 1989 to September, 2004, as also the Founding Director, Lal Bahadur Shastri Institute of Management from August, 1995 to March, 2005, and came to be appointed as Vice-Chairman, All India Council for Technical Education (AICTE), which post he held from March, 2005 till March, 2008, and has been serving as Acting Chairman, AICTE from July, 2007 and was then appointed as its Chairman vide order dated 21.4.2008, has been suspended with immediate effect, vide order dated 29.7.2009, in exercise of the powers vested with the President under sub-rule (1) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter to be referred as the Rules of 1965). In the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, he seeks to quash and set aside the said order, and in consequence of setting aside the same, to direct the respondents to allow him to function as Chairman, AICTE by restoring status quo ante prior to the date of his suspension, with all consequential benefits. Even though, the grounds seeking the reliefs as indicated above are purely based upon legal issues, the facts, even in brevity, would still need a mention.
2. Vide order dated 16.4.2008, the Appointments Committee of the Cabinet (ACC) approved the proposal for appointment of the applicant on the post of Chairman, AICTE for a period of three years with effect from the date of assumption of charge of the post or the age of 65 years, whichever was to be earlier. Pursuant to approval of the ACC, the applicant came to be appointed as Chairman, AICTE in terms of Section 3(4)(a) of the All India Council for Technical Education Act, 1987 (hereinafter to be referred as the Act of 1987) for a period of three years or until he was to attain the age of 65 years or until further orders, whichever was to be the earliest, vide orders dated 21.4.2008. Inasmuch as, there appeared to be a mistake in the order dated 21.4.2008 as regards the use of words until further orders, yet another order dated 5.3.2009 came to be passed in terms of provisions of Section 3(4)(a) of the Act of 1987 appointing the applicant as Chairman, AICTE for a period of three years or until he was to attain the age of 65 years, whichever was to be earlier. The applicant claims to be highly respected and sought after in the field of education. It is his case that in order to head the AICTE as Chairman, he needed to meet stringent criteria apart from being a highly qualified and distinguished professional, and that it was because of his reputation as an honest and upright individual that he was offered the position as Chairman, AICTE. A complaint came to be filed by Echelon Institute of Technology directly to the Special Secretary, Ministry of Human Resource Development on 26.3.2008. The said complaint outlined the main grievances that the complainant had against certain AICTE officials. It was alleged therein that Shriom Dalal, R.O. Chandigarh, and later collaborating with other officials, deliberately delayed the process of issuance of the letter of intent by raising fake objections. The complainant also raised objections regarding the constitution of the inspection committee on personal considerations, delaying the visit of the expert committees, and delay in sending and transferring of crucial documents. Yet another complaint dated 29.8.2008 came to be submitted by the same institute to the Additional Secretary, Higher Technical Education, Ministry of Human Resources Development, against certain AICTE officials. It was stated therein that the officials deliberately stalled making crucial decisions and transfer of vital documents related to increase in intake of seats for the session 2008-2009, approval for extension for the institute for 2009-2010 and approval for increase in intake of seats for the year 2009-2010. The said complaint, according to the applicant, specifically dealt with delays in approval caused by Prof. H. C. Rai, Adviser (E&T), AICTE and demands for money, accompanied with the threat that in case of non payment, increase in intake of seats would not be allowed. The complaint was against Shriom Dalal, R.O. Chandigarh. The Ministry of HRD conducted an independent enquiry and sought AICTEs response vide letter dated 15.12.2008 to the complaints as mentioned above. The Ministry, acting on the advice of Central Vigilance Commission, decided that sufficient evidence had been placed on record to merit disciplinary action from the competent authority against Prof. H. C. Rai and Shriom Dalal. These findings were sent to AICTE vide letter dated 19.5.2009 and thereafter Central Vigilance Officer, AICTE, after obtaining approval of the applicant, who was the competent authority being Chairman, AICTE on expedited basis, issued office memorandum dated 10.6.2009 to both Prof. H. C. Rai and Shriom Dalal. The concerned parties sought time to reply to the said memorandum. The applicant being Chairman approved disciplinary action against the concerned officials of AICTE on an expedited basis and was party to the office memorandum that was issued to both parties seeking explanation for their conduct. A third complaint came to be filed on 8.7.2009 before Central Bureau of Investigation naming for the first time the applicant on the assumption that the misconduct of the AICTE officials, i.e., Prof. H. C. Rai, Mrs. Rominder Randhawa and Shriom Dalal coule not be but for the active support and connivance of the applicant. This complaint to CBI led to a case being registered u/s 120-B IPC and sections 7 and 8 of the Prevention of Corruption Act, 1988. It is for this reason, it is stated, that the applicant was placed under suspension vide order dated 29.7.2009.
3. The facts as stated and as mentioned above, as may appear from the counter reply filed on behalf of the 2nd respondent, are not in dispute. The order dated 5.3.2009 appointing the applicant as Chairman, AICTE, is stated to have been passed in supersession of the order dated 21.4.2008. It is the case of the respondent that the Central Government being the appointing authority under Section 3(4(a) of the Act of 1987, in respect of Chairman, AICTE and in the light of investigation of a case against the applicant in respect of criminal offence, issued the order dated 29.7.2009 placing him under suspension with immediate effect. It is averred that a complaint dated 15.8.2009 from one M. K. Jha was received wherein various allegations were made against the applicant. Another complaint dated 3.9.2009 making various allegations including bribery and misuse of his position by the applicant was received by Chief Vigilance Officer, AICTE from CBI. CBI registered FIR No.MA1 2009 A 0056 dated 30.10.2009 under Section 120B read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the applicant for suspected offences of criminal conspiracy, cheating and abuse of official position. CBI registered another FIR No.RC0102009A0043 dated 8.12.2009 under Section 13(2) read with Section 13(1)(d) of the Act of 1988 and Section 120B read with Section 420 IPC against the applicant as the first accused along with others for the suspected offence of criminal conspiracy, cheating and criminal misconduct. It is the case of the respondent that the applicant has been drawing his allowances and benefits such as leave, HRA, traveling allowance etc. as per instructions and norms of the Government as applicable to the Central Government employees. It is averred that having availed the benefit of various allowances in terms of the norms of the Government of India as applicable to Central Government employees, it is not open to the applicant to turn around and claim that the Rules of 1965 would not be applicable to him. The applicant is stated to have elected to opt for the revised scales of pay w.e.f. 1.1.2006 under the CCS (Revised Pay) Rules, 2008. The applicant has filed rejoinder with regard to cases registered against him by CBI and has tried to explain his position. Surely, as nothing on merits, insofar as registration of cases by CBI against the applicant is concerned, has been urged during the course of arguments, there would be no need to make further reference of the same.
4. The issues raised by Shri P. P. Rao, learned Senior Advocate representing the applicant in support of the Application seeking setting aside of the order of suspension dated 29.7.2009 being void ab initio are pure questions of law. The first plea raised on that count is that the impugned order of suspension is illegal having been issued in purported exercise of powers conferred by rule 10(1) of the Rules of 1965, which would apply only to Government servants. The applicant, it is urged, holds a statutory office governed by the Act of 1987, and that he is not a Government servant within the meaning of rule 10(1) read with rule 2(h) of the Rules of 1965. It is next urged by the learned counsel that the Rules of 1965 have been framed under proviso to Article 309 of the Constitution and they cannot prevail over the Act of 1987, and that the appointment of the applicant is under Section 3(4)(a) of the Act of 1987, and once the service conditions of the applicant are governed by the said Act, the field as regards service conditions would be occupied by the said Act and, therefore, the Rules of 1965 would not be applicable. The Act of 1987, it is thus urged, would prevail over the Rules of 1965. It is then urged that if the Rules of 1965 may be inapplicable, the Government may yet oppose the cause of the applicant but the same can be only on the basis of provisions of Section 16 read with Section 21 of the General Clauses Act, 1897 (hereinafter to be referred as the Act of 1897), but in that event as well the order of suspension shall have to be set aside for the reason that the same was not passed after taking prior approval of the ACC. The order of suspension is also stated to be illegal for non-payment of full salary and allowances as subsistence allowance for the period commencing from July 20 to October 31, 2009, and non-payment of any subsistence allowance from November 1, 2009 till date. It is urged that suspension without payment of subsistence allowance would be violative of articles 14, 16 and 21 of the Constitution. Assuming that the order of suspension is valid, in the absence of a provision in the Act of 1987 or the rules made thereunder or in the terms and conditions governing the appointment of the applicant as Chairman, AICTE, he would still be entitled to full salary and allowances for the period he is not allowed to work on the ground of investigation of criminal case against him, is the last plea raised by the learned counsel. We may state at this stage itself that the learned counsel, after concluding his arguments, stated that in the event of the present Application being allowed with direction to the respondents to restore status quo ante with all consequential benefits as prayed for, the applicant undertakes to allay the apprehension voiced by the Government in the impugned order of suspension that they need not allot any work to the applicant during the investigation till the chargesheets are filed in court after completion of CBI investigation, and that the applicant will not attend the office of AICTE provided the Government continues to pay him full salary and allowances for the entire period till the date of resumption after completion of investigation from the date when the impugned order of suspension was issued. In that regard, an affidavit dated 4.2.2010 has been placed on record.
5. Shri Rakesh Dwivedi, the learned ASG, joins issues on all the points raised by the learned counsel representing the applicant, and after instructions, states that the Government is not prepared to give full salary and allowances to the applicant as well. He contends that the applicant is a Government servant as would be made out from provisions of rules 2(h), 3 and 10 of the Rules of 1965, and a person holding a civil post under the Government would be a Government servant, and that the said Rules are still applicable as no rules have been framed under Section 22 of the Act of 1987 with regard to terms and conditions of appointment of Chairman, AICTE, and that being so the Rules of 1965 would apply. With regard to the second issue raised by the learned counsel representing the applicant, and as has been mentioned above, it is urged that by virtue of Article 309 of the Constitution, the Rules of 1965 would apply until under the Act of 1987 statutory rules are framed. Section 3(4) of the Act of 1987 alone, it is urged, would not displace the Rules of 1965 with respect to conditions of service. With regard to provisions of Sections 16 and 21 of the Act of 1897, it is urged that even if the applicant may not be a Government servant and thus not amenable to the Rules of 1965, the Government would still have the power to suspend him under provisions of Section 16 of the said Act, and insofar as Section 21 is concerned, the same would not be applicable, as that only pertains to the rules, bye laws and notifications. Insofar as the expression orders in Section 21 is concerned, the same is mentioned along side rules, bye laws and notifications and the context are indicative of the expression covering those orders which are general in nature like rules and bye laws, i.e., to say which are in the nature of delegated legislation. The expression orders, it is urged, will not apply to specific orders with respect to individuals, like orders of appointment are issued. It is urged that while under suspension, the applicant would have no right to ask for full salary and that insofar as, the subsistence allowance is concerned, it is clearly mentioned in the order of suspension that the order with regard to the same would be issued separately. Such an order was indeed passed on 14.10.2009 which provided for payment of half of the leave salary as envisaged in the rules. It is further urged that the applicant is being paid in accordance with order dated 14.10.2009, and that if for some months the subsistence allowance may not have been paid, the same shall be paid positively, and on that count the order of suspension need not be set aside. The entitlement of the applicant for full salary is also refuted.
6. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Before we may advert to the contentions for and against raised by the learned counsel for parties as noted above, it would be useful to refer to some provisions of the Act of 1987, as also the relevant provisions in the Rules of 1965. Section 2(d) of the Act of 1987 defines member to mean a member of the Council and includes the Chairman and Vice-Chairman. Section 3 deals with establishment of the Council, which would be with effect from such date as the Central government may, by notification in the official gazette, appoint. The same would be in the name of the All India Council for Technical Education. It would be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power to contract and shall by the said name sue and be sued. The Council shall consist of members as enumerated in sub-section (4) of Section 3, which include the Chairman and Vice-Chairman, who are to be appointed by the Central Government. Some persons are members of the Council by virtue of their office. Insofar as, however, the members who are to be appointed are concerned, the Central Government alone has the power to appoint them. Section 4 deals with terms of office of the member, the method of filling casual vacancies and the procedure to be followed by members in the discharge of their functions. As per provisions contained in Section 20, the council in discharge of its functions and duties under the Act is to be bound by such directions on question of policy as the Central Government may give in writing to it from time to time, and the decision of the Central Government as to whether a question is one of policy or not is to be final. The Central Government has the power to supersede the council as per provisions contained in Section 21. Under the provisions contained in Section 22 dealing with power to make rules, the Central Government may, by notification in the official gazette, make rules to carry out the purposes of the Act. Clause (e) of sub-section (2) provides that without prejudice to the generality of its powers, the Central Government may provide for any other matter which has to be, or may be, prescribed. Insofar as, the terms and conditions of service of the officers and employees of the Council are concerned, the power is vested with the Council to make such regulations, by notification in the official gazette, which shall not be inconsistent with the provisions of the Act, and the rules generally to carry out the purposes of the Act, as per provisions contained in Section 23(2)(b). Every rule and regulation made under the Act shall be laid before the Parliament (Section 24). Admittedly, no service rules, be it under clause (e) of Section 22(2) or regulations as per provisions contained in Section 23(2)(b) were framed till such time the applicant came to be suspended. The provisions of the Act of 1987 do not contain any provision with regard to service conditions of Vice-Chairman or Chairman, but for the term of the office of members, which term includes Vice-Chairman and Chairman. There are no provisions with regard to removal and suspension. It is only by notification dated 11.1.2010 that the Central Government in exercise of powers conferred by sub-section (1), read with clause (e) of sub-section (2) of Section 22 of the Act of 1987, has made the rules regarding method of recruitment on the post of Chairman. We may only make a mention of rule 7 thereof which states that the other conditions of service of the Chairman for which no specific provisions have been provided in the said rules, shall be regulated in accordance with such rules as are from time to time followed or made applicable by the Council/Government to Group A officers of the Central Government drawing the pay and allowances in corresponding scales of pay.
7. Insofar as, provisions of the Rules of 1965 are concerned, we may make a mention of rules 2(h) and 10(1) thereof. Rule 2(h) defines Government servant to mean a person who (i) is a member of a Service or holds a civil post under the Union, and includes any such person on foreign service or whose services are temporarily placed at the disposal of a State Government, or a local or other authority; (ii) is a member of a Service or holds a civil post under a State Government and whose services are temporarily placed at the disposal of the Central Government; (iii) is in the service of a local or other authority and whose services are temporarily placed at the disposal of the Central Government. Sub-rule (1) of rule 10 dealing with suspension, reads as follows:
(1) The Appointing Authority or any authority to which it is subordinate or the Disciplinary Authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension
(a) where a disciplinary proceeding against him is contemplated or is pending; or (aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:
8. Shri Rao, in support of the first contention raised by him as noted above, would contend that the Rules of 1965 apply to Government servants, which term has been defined in rule 2(h), and that clauses (ii) and (iii) of rule 2(h) would not be applicable at all, and insofar as clause (i) of the said rule is concerned, the same would be applicable to a person who is a member of a service or holds a civil post under the Union, and the applicant who is holder of a statutory office would thus not be a Government servant, and that once, he is not a Government servant, the provisions contained in rule 10 dealing with suspension, which are applicable only to Government servants, would not apply. For the proposition as mentioned above, reliance by the learned counsel is placed upon two decisions of the Honble Supreme Court in Dr. S. L. Aggarwal v General Manager, Hindustan Steel Ltd. [(1970) 1 SCC 177]; and Prahlad Sharma v State of Uttar Pradesh [(2004) 4 SCC 113], in which the Supreme Court followed its decision in Dr. S. L. Aggarwal (supra). Per contra, Shri Rakesh Dwivedi, the learned ASG, would contend that rules 2(h), 3 and 10 of the Rules of 1965 would indicate that these Rules would apply to all Government servants, and a person holding a civil post under the Government would be a Government servant as covered under rule 2(h)(i). The said rules, it is urged, would be applicable as the Act of 1987 does not provide the terms and conditions with respect to Vice-Chairman and Chairman, AICTE. No rules were made till such time the notification dated 11.1.2010 was issued. It is contended that by the time the applicant was suspended there were no rules in existence dealing with the terms and conditions of service of Chairman and, therefore, by virtue of Article 309 of the Constitution, the Rules of 1965 would apply, and that Section 3(4) of the Act of 1987 alone would not displace the Rules of 1965 with respect to conditions of service.
9. We have pondered over the issue as debated by the learned counsel representing the parties. We are, however, of the view that there would be no need to adjudicate this issue. During the course of arguments it could not be disputed that if the Rules of 1965 may apply, the applicant would be Government servant liable for suspension under rule 10 thereof, but nonetheless, the order of suspension has to be passed by the appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order. However, if the Rules of 1965 may not apply, it is not that the Government would have no power to suspend the applicant simply because there is no provision to do so in the Act of 1987, as surely and admittedly the Government can resort to provisions contained in Section 16 of the Act of 1897. When the Government acting through the appointing authority may have power to suspend, even if there is no provision with regard to the same, be it a Government officer or a statutory authority, the question as to whether the applicant is a Government servant or not would pale into insignificance. If there be a power vested with the Government to place even a authority under the statute under suspension, the mere use of a wrong provision, like the one in the present case, i.e., rule 10 (1) of the Rules of 1965, would not invalidate the order. It is too well settled a proposition of law that wrong mention of the correct source of power or no mention at all, of the source of power, would not vitiate the order, if the power to do so exists. We need not burden the judgment by referring to the case law on the issue and would leave the matter by simply referring to the judgment of the Constitutional Bench of the Honble Supreme Court in Tulsiram Patel v Union of India [(1985) 3 SCC 398.
10. The controversy, however, veers thick as to applicability of Section 16 of the Act of 1897, which according to Shri Rao, has to be read with Section 21, and if so read, even if the order of suspension may have been passed by the appointing authority, but the same did not have the approval of the ACC, which was essential to appoint the applicant as Chairman, and if, therefore, the ACCs approval was a condition precedent for making appointment of the applicant as Chairman, the procedure to suspend him had to be the same, i.e., it must have the approval of the ACC. To determine the issue as mentioned above, it would be appropriate to make a mention of Sections 16 and 21 of the Act of 1897, which read thus:
16. Power to appoint to include power to suspend or dismiss. Where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power. 21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws. Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. Provisions contained in Section 16 would manifest that the appointing authority has power to suspend or dismiss any person appointed by it. A person holding whatever nature of post, i.e., be it under the Government or statutory, it is clear, can be suspended or dismissed, which power is statutorily recognized by virtue of provisions contained in Section 16. In our view, even if there was no statutory recognition to such a power, the same is inherent. The employer has an inherent right to suspend or dismiss any employee or statutory authority, if it may have the power to appoint him, even though the same shall have to be done on some reasonable grounds, like in case of suspension, when an enquiry is pending or contemplated, or when a Government servant or statutory authority may be involved in a criminal case, and in case of dismissal, after providing proper opportunity to the Government servant/statutory authority concerned by following all principles of natural justice. In S. R. Tewari v District Board, Agra & Another [(1963) 3 SCR 55], it was held by the Apex Court that power to appoint also includes the power to terminate the appointment. If the appointing authority has inherent right to terminate the services of an employee, be it a Government servant or a statutory authority, it would have the right to suspend as well, as surely, the larger power includes the lesser power as well. In Dr. Bool Chand v Chancellor, Kurukshetra University [(1968) 1 SCR 433] it was held that the Chancellor who had power to appoint Vice-Chancellor, but there was no provision to determine the employment, the power to do so would be implied in power to appoint. Dr. Bool Chand, as may appear from the facts of the case aforesaid, was a member of the Indian Administrative Service and was compulsorily retired from service for misconduct by an order of the President in February, 1963. In June, 1965 he was appointed as Vice-Chancellor of the University by the Chancellor. In March, 1966 the Chancellor ordered his suspension and also issued to him a notice to show cause why his services be not terminated. During pendency of the writ petition in the High Court, an order terminating his services was passed. Challenge was made to the said order as well. One of the pleas raised in support of the petition was that the Chancellor had no power under the Act or the statute to terminate the tenure of office of a Vice-Chancellor. The contention was repelled by holding that the absence of a provision setting up procedure for determining the employment of Vice-Chancellor in the Act or the statute would not lead to the inference that the tenure of office of Vice-Chancellor was not liable to be determined; and that the power to appoint ordinarily implies the power to determine the employment, which rule is incorporated in s.14 of the Punjab General Clauses Act, 1898. In Lekhraj Satramdas Lalvani v Dupty Custodian-cum-Managing Officer & Others [(1966) 1 SCR 120] it has been held that Section 16 of the Act of 1897 provides that the power to terminate is a necessary adjunct of the power of appointment and is exercised as an incident to or consequence of that power, and that the power of appointment conferred on the Custodian, by implication would confer upon it the power to suspend as well. The learned counsel representing the respondents has cited two other decisions of the Supreme Court in support of the contention as mentioned above. We may only make a mention of the same. Reliance on that behalf is placed upon M/s Heckett Engineering Co. v Their Workmen [(1977) 4 SCC 377], and Capt. M. Paul Anthony v Bharat Gold Mines Ltd. & Another [(1999) 3 SCC 679].
11. The power to suspend by the appointing authority that emanates from the provisions contained in Section 16 of the Act of 1897 is not in dispute. What, however, is being seriously urged is that this power has to be exercised as per provisions contained in Section 21 of the Act of 1897. Before we may take in hand the exercise to adjudicate the issue as raised by Shri Rao, we may mention that once, the power to suspend emanating from the provisions of the Act of 1897 is not in dispute, the controversy with regard to the field being occupied by the Act of 1987 would be of no meaning and consequence. However, we are inclined to accept the contention raised by Shri Dwivedi, the learned ASG, that it is not a case of the field being occupied by the Act of 1987. Admittedly, no provision for dismissal or suspension exists in the Act of 1987. But for mentioning the appointing authority for the Chairman, which is to be the Central Government, and the term that a member may enjoy, nothing at all finds mentioned in the Act of 1987, insofar as the service conditions of the Chairman are concerned. There may be power to make rules and regulations which may deal with the service conditions of officers and employees of the Council, but admittedly, the power vested either with the Central Government to make rules or with the Council to make regulations had not been exercised till such time the order of suspension came to be passed. Once, the conditions of service of officers and employees of the Council could be laid down, but had not yet been laid, the mere power of the Government to make appointment of the Chairman under Section 3(4) of the Act of 1987 would not dispel applicability of the Rules of 1965. Learned counsel representing the parties for their rival contentions with regard to the applicability or non-applicability of the Rules of 1965 as regards the field being occupied or not, have cited number of judicial precedents, but we do not think the same need to be mentioned, as there may not be any dispute insofar as the law is concerned that if the field is occupied, resort can be made only under the provisions of the said Act, but in the present case, we are of the view that it is not the case of the field being occupied by the provisions contained in the Act of 1987.
12. Shri Rao while admitting the applicability of the provisions contained in the Act of 1897, would, however, as mentioned above, seriously contend that the provisions of Section 16 have to be read with Section 21. He would contend that the Government may have power to amend, vary or rescind any notifications, orders, rules or bye-laws in the like manner and subject to the like sanction and conditions. If the appointment of the applicant as Chairman had to precede approval of the ACC, the order of suspension could not be passed without the said approval, thus contends the learned counsel. Shri Dwivedi, with matching vehemence, contends that Section 16 of the Act of 1897 provides that the power of appointment shall include the power to suspend or dismiss, and that Section 3(4) of the Act of 1987 would include the power of the Central Government to suspend, and further that insofar as, the power to suspend or dismiss under Section 16 of the Act of 1897 is concerned, Section 21 thereof would have no applicability, and the special provisions contained in Section 16 are sui generis and independent of Section 21, and are mutually exclusive. In the alternative, it is urged that the expression orders as mentioned in Section 21 of the Act of 1897 read with expressions rules, bye-laws and notifications, would be indicative of the expression covering those orders which are general in nature, like rules and bye-laws, i.e., to say which are in the nature of delegated legislation. In other words, the contention is that the expression orders has to be understood in accordance with the doctrine of noscitur a sociis, which is a species of the doctrine of ejusdem generis. In rebuttal, Shri Rao contends that even as per provisions contained in Section 16 of the Act of 1897, the position is clear that the power to suspend an employee is not an independent power but is part of the power to appoint, and that the power to appoint, even though may vest with the Government, but it has to necessarily precede the approval of the ACC, and the order of suspension could not be passed without approval of the ACC, and further that what is implicit under Section 16 is made explicit by Section 21 by saying that the power to issue orders would include the power exercisable in the like manner and subject to the like sanction and conditions, if any, to add to, amend, vary or rescind any order.
13. We have given our thoughtful consideration to the rival contentions of the learned counsel representing the parties, as noted above. We are, however, inclined to accept the contention raised by Shri Dwivedi, the learned ASG. In our considered view, Section 16 of the Act of 1897 cannot be read with Section 21 thereof. Section 16 is specific and deals only with the power of appointing authority to suspend or dismiss. The Government has power under Section 3(4)(a) of the Act of 1987 to make appointment of Chairman. It would have the power to suspend or dismiss the Chairman as well. Section 16 would not require the order of suspension or dismissal to be passed in the same manner and subject to the like sanction and conditions required for appointment. Insofar as, Section 21 is concerned, that is general in nature dealing with issuance of notifications, orders, rules or bye-laws. It is too well settled a proposition of law that if a situation is especially envisaged in a provision, the same shall have to be dealt with as per the said specific provision, and resort to general provision would not be made. We repeat and reiterate that insofar as, Section 21 is concerned, the same is general in nature, applying to issuance of notifications, orders, rules or bye-laws of any kind, which may also include suspension as well, but the same having been specifically dealt with in Section 16, would be excluded from the purview of Section 21.
14. We find considerable merit in the alternative contention as well raised by the learned counsel representing the respondents that the expression orders in Section 21 of the Act of 1897 has to be understood in accordance with the doctrine of noscitur a sociis, which is a species of the doctrine of ejusdem generis, and that every word in a legal provision takes colour from the collocation of words or context in which it occurs, and, therefore, the expression orders cannot be understood to be something widely different from the other expressions rules, bye-laws and notifications. A Division Bench of the Rajasthan High Court in Kanta Devi & Another v State of Rajasthan & Others [AIR 1957 Rajasthan 134] had an occasion to deal with the same point as involved in the present case. On facts, we may only mention that it was a case of nominating a person to be as member of the board. One of the contentions raised was that it is a mere notification and that under Section 21 of the Act of 1897, the power to issue a notification includes the power to add to, amend, vary or rescind it. The contention was repelled by observing that Section 21 has no application to such a case. It was further held that It applies to those cases of notifications, which are in the nature of orders, rules or bye-laws or are of a general nature. The present is a notification which, in our opinion, comes under S.16 of the General clauses Act, 1897 because the nomination of certain persons to a Municipal Board amounts to their appointment as members of the Board. Now under S.16 of the General Clauses Act, which applies to the Act which we are considering, the power to appoint includes the power to suspend or dismiss unless a different interpretation appears in the law or order relating to the appointment. It was further held as follows:
We see no reason why we should assume a power in the Government to cancel the appointment of a nominated member, unless that power is conferred by law. The only provision, as we have already pointed out, is S.16 of the General Clauses Act, 1897 which gives power of dismissal and which will include removal by the appointing authority; but the power under S.16 is subject to a different intention appearing in the law or order under which the appointment is made. A Division Bench of the Patna High Court in Bhola Prasad Singh v Prof U. A. Goswami & Others [AIR 1963 Patna 437] had an occasion to deal with Section 24 of the Bihar and Orissa General Clauses Act, which is pari materia to Section 21 of the Act of 1897. While observing that Sections 23 to 27 of the Bihar and Orissa General clauses Act correspond respectively to Sections 20 to 24 of the Act of 1897, and are under the heading Provisions as to Orders, Rules, Etc., made under Enactments, it was held that Reading of Section 24, by itself in the context of the other sections under the said heading, it is clear that the power to make or issue orders spoken of in the said section is of a legislative nature and not of a judicial nature as the order passed under Section 8(4) of the Act is. The expression to make or issue orders has got to be read ejusdem generis and, when so read, it is manifest that the orders spoken of in Section 24 of the Act are orders made or issued in exercise of the power of a kind of subordinate legislation conferred by any Act, to wit, the various Control Orders made under the Defence of India Act within the meaning of Section 21 of the Central Act. The Supreme Court in Indian National Congress (I) v Institute of Social Welfare and Others [(2002) 5 SCC 685], while dealing with Section 21 of the Act of 1897, held that On perusal of Section 21 of the General Clauses Act, we find that the expression order employed in Section 21 shows that such an order must be in the nature of notification, rules and bye-laws etc. The order which can be modified or rescinded on the application of Section 21 has to be either executive or legislative in nature. The question before the Apex Court for determination was whether in the absence of any express or implied power, the Election Commission is empowered to cancel the registration of a political party on the strength of the provisions of Section 21 of the Act of 1897.
15. Shri Rao would seriously dispute the proposition as advanced by Shri Dwivedi, the learned ASG, and would contend that insofar as, the two decisions of the Rajasthan and Patna High Courts are concerned, the same are of High Court, and that the Supreme Court in Amir Shad Khan & Another v L. Hmingliana & Others [(1991) 4 SCC 39] invoked Section 21 of the Act of 1897 in the case of a detention order which is not a rule, bye-law or notification. Insofar as, the judgment of the Supreme Court in Indian National congress (I) (supra) is concerned, it is urged that the Apex Court held that Section 21 of the Act of 1897 would not apply where the statutory authority is required to act quasi judicially. In the same very decision, it has been held that the order which can be modified or rescinded on the application of Section 21 has to be either executive or legislative in nature, and that in the instant case the impugned order of suspension is undoubtedly an executive order and, therefore, Section 21 would apply. The two decisions of the Rajasthan and Patna High Courts, in our view, would clearly support the contention raised by Shri Dwivedi. The said decisions directly deal with the issue in hand. Insofar as the judgment of the Honble Supreme Court in Amir Shad Khan (supra) relied upon by the learned counsel representing the applicant is concerned, the same does not deal with the issue as has been raised in the present case. There was no issue as to whether the order of detention would be covered under the provisions of Section 21 of the Act of 1897. The Apex court was dealing with Section 11 of COFEPOSA Act, 1974, which reads as follows:
11. Revocation of detention orders. (1) without prejudice to the provisions of Section 21 of the General Clauses Act, 1897, a detention order may, at any time, be revoked or modified notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government;
notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government. It was observed that it would be obvious from a plain reading of the two clauses of sub-section (1) of Section 11, as extracted above, that where an order is made by an officer of the State Government, the State Government as well as the Central Government are empowered to revoke the detention order; where, however, the detention order is passed by an officer of the Central Government or a State Government, the Central Government is empowered to revoke the order. Provisions of Section 11 of the said Act, it was held, would be without prejudice to Section 21 of the Act of 1897 which lays down that where by any Central Act a power to issue orders is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions, if any, to rescind any order so issued. Detention order, as per Shri Rao, was held to be an order covered under Section 21 of the Act of 1897. It may be so, but we may repeat that the issue as to whether such an order would be covered under Section 21 was neither in debate nor any decision was given thereon. The law declared by the Honble Supreme Court is, by virtue of provisions contained in Art. 141 of the Constitution, binding upon all courts and tribunals, but it is settled position in law that, to be binding, there has to be an issue, debate and decision thereon, as that would only constitute a precedent. If there be no issue nor any debate, nor thus a finding, and if some observations may be made, it would not be binding being sub silentio. The judgment of the Honble Supreme Court in Indian National Congress (I) (supra) directly deals with the issue and it is this judgment which as binding precedent, shall have to be followed. The contention of Shri Rao that in the same very judgment it has been held that the order which can be modified or rescinded on the application of Section 21 has to be either executive or legislative in nature, and that the impugned order of suspension in the present case is an executive order, does not appear to be correct. The order of suspension cannot partake the character of an executive order and would thus not be covered under provisions of Section 21 of the Act of 1897. That apart, as mentioned above, Section 16 of the Act of 1897 provides that the power to appoint includes the power to suspend or dismiss. Provision contained in Section 3(4) of the Act of 1987 which vests with the Government the power to appoint, would give it the power to suspend as well, and, therefore, there is no need to have resort to Section 16 and/or Section 21 of the Act of 1897.
16. Section 21 of the Act of 1897, it further appears, would be applicable or attracted where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred. Such a power includes the power exercisable in the like manner and subject to the like sanction and conditions, if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. In our considered view, for applicability of Section 21, there has to be first the manner of exercise or condition for exercise or sanction for exercise of the power prescribed a Central Act or Regulation. The Central Act in the present case is the Act of 1987 and the provision in question is Section 3(4) thereof. The said provision does not provide the manner or condition for sanction for making appointment. It simply confers power on the Central Government to make appointment of Chairman. The manner and method of making such appointment is not provided under the Act of 1987 and, therefore, as well Section 21 of the Act of 1897 would not be attracted to the facts of the present case.
17. Shri Rao would, however, contend that even if it is assumed that Section 16 of the Act of 1897 alone would be applicable in the facts of the present case to say that the power to appoint includes the power to suspend, the power to suspend shall still need to be exercised in the same manner in which the appointment was made, as Section 16 would itself make the position clear that the power to suspend an employee is not an independent power but is part of the power to appoint, and that the competent authority without whose approval appointment of Chairman under Section 3(4) of the Act of 1987 cannot be made, is the ACC and not the Ministry of Human Resources Development (HRD). Reference is made to office memorandum dated 3.7.2006 issued by the DOP&T, which lays down policy and procedure for appointments in autonomous institutions through the ACC. Whereas clause (i) of the said memorandum requires that all appointments of Chief Executives, carrying the scale of pay of Rs.18400-22400 and above in Central autonomous institutions, should come under the purview of the ACC, clause (iv) states that the search-cum-selection committee would mandatorily include at least one outside expert of eminence from the relevant field. Clause (vi) provides that the panel recommended by the committee will have to be implemented by the Ministry/Department in toto, and that any deviation in the matter will require prior approval of the ACC; however, appointments of Chief Executives in the scale of pay of Rs.18400-22400 and above, would require prior approval of the ACC. The memorandum also lays down that the panel recommended by the search-cum-selection committee will be valid for one year. Clause (viii), according to the learned counsel, places the matter beyond doubt, as it says that Wherever the statutes provide for an appointment, to the post, with the approval of the Central Government, the appointment to the posts of Chief Executives, of the pay scale of Rs.18400-22400/- and above, will be within the purview of the ACC. Clause (ix) states that the orders would be applicable to all autonomous institutions of all the Ministries. Clause (x) lays down that the approval for entrusting additional charge/current charge of the posts of chief Executive in autonomous institutions carrying the scale of pay of Rs.18400-22400 and above, would be with the ACC. The learned counsel further contends that communication dated 17.4.2008 of ACC to the Department of Higher Education, order dated 21.4.2008 of appointment of the applicant as chairman, AICTE and order dated 5.3.2009 modifying one of the terms of his appointment issued by the Ministry of HRD and endorsements made on copies marked to ACC would make it clear that the power to appoint the applicant has been exercised jointly by the ACC by granting prior approval, and the Ministry of HRD by issuing the order of appointment thereafter, and that if the appointment requires joint exercise of power, both by the ACC and the Ministry, it follows logically that the power to suspend, which is part of the power to appoint, has necessarily to be exercised jointly by the ACC and the Ministry. The order of suspension having not been made with the prior approval of ACC would be void ab initio, thus contends the learned counsel.
18. The power to appoint Chairman, AICTE by virtue of provisions contained in Section 3(4) of the Act of 1987 vests with the Central Government. The powers of Central Government are exercised in accordance with the rules of business framed under Art. 77 of the Constitution. Art. 77(3) reads as follows:
(3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business. The Act of 1987 does not specify particular authority of the Central Government who is to make the order of appointment. That being so, the rules of business shall govern the field. Rule 5 of the rules of business, copy whereof has been given to us during the course of arguments, reads thus:
APPOINTMENTS TO SENIOR POSITIONS IN AUTONOMOUS BODIES
5. In accordance with the conclusions emerged during the deliberations of the Committee, the following recommendations are made in this regard:-
(i) In respect of Autonomous Bodies/ Institutions/Societies where the Corporation of the Selection Committee and the selection procedures are provided statutorily, the powers to make appointments to the management level posts in such bodies/Institutions/Societies may vest with the Minister-in-Charge of the Ministry having administrative control over such Body/Institution/ Society.
(ii) If the composition of the Selection Committee/the Selection procedure is determined from time to time or is as per the provisions contained in Articles of Association or Regulations or Bye-laws of the Autonomous Body, the appointments sought to be made on the recommendations of such Selection Committees/ Search-cum-Selection Committees to the posts of Chief Executive should be made with the approval of the ACC only. The power to appoint Chairman, AICTE vests with the Minister-in-charge of the Ministry having administrative control, and, admittedly, in the present case it would be the Ministry of Human Resources Development. Prior approval of ACC for appointment is indeed required. Even as per memorandum dated 3.7.2006 prior approval of ACC for appointment of Chairman, AICTE would be required, but that does not make the ACC the appointing authority. Insofar as, the statute is concerned, i.e., provisions contained in the Act of 1987, there is no pre-condition that the appointment of Chairman shall be made with prior approval of ACC. It is not a condition precedent for appointment under the statute. However, if the rules of business have come into being by virtue of provisions contained in Article 77, they would be binding, and once there is no serious dispute on that issue, we may not refer to the case law referred to by the learned counsel representing the parties. However, what is significant is that prior approval is required only for appointment as per even the rules of business. There is no provision either in the memorandum dated 3.7.2006 or the rules of business which may make prior approval of the ACC as sine qua non for placing the Chairman, AICTE under suspension. The rules of business only require prior approval to make appointments, which may also include termination, but there is no specific provision as regards obtaining prior approval of ACC for suspension. We may mention that appointment on number of posts in higher echelons, as per the rules of business, may require prior approval of the ACC, such as Chairman, Vice-Chairman and Members of tribunals, but unless its approval may be statutorily required for placing them under suspension, if the situation may so arises, it cannot be said that simply because the approval of the ACC is required before the appointing authority may make appointment, for suspension also such approval shall be required. If the rules of business were perhaps to say that even for suspension as well, prior approval shall be required, there would arise some argument in favour of the applicant. Such is indeed not the position. The power to place an employee under suspension is that of the employer/appointing authority and such bodies or authorities which may have to be only consulted or prior approval whereof has to be obtained, would not become the appointing authorities. The Honble Supreme Court in State of Assam v Kripanath Sharma & Others [AIR 1967 SC 459], while dealing with a similar situation, held that where there is power of appointment with an authority under the statute, even though such power has to be exercised in accordance with the advice of the committee and even if such recommendation may be necessary before making appointment, the fact still remains that it is not the committee which appoints. We may reproduce the observations made by the Honble Supreme Court on that count. The same read, thus:
13. Now as we read S. 14 (3) (iii) of the Act, it is obvious that the power of appointment is only in the Assistant Secretary, though that power has to be exercised on the advice of the Committee constituted under S. 16 of the Act. Even assuming that the recommendation of the Committee is necessary before appointment is made by the Assistant Secretary, the fact still remains that it is not the Committee which appoints, and the appointment is made only by the Assistant Secretary. Even if the word "advice" in this provision is equated to the word "recommendation", it is still clear that the Committee only recommends and it is the Assistant Secretary who is the appointing authority on the recommendation of the Committee. It may be that the Assistant Secretary cannot make the appointment without the advice or recommendation of the Committee. Even so, in law, the appointing authority is only the Assistant Secretary, though this power is to be exercised on the advice or recommendation of the Committee. In these circumstances, it cannot be said that there is any different intention appearing from the fact that the appointment has to be made on the recommendation or advice of the Committee. The appointing authority would still be the Assistant Secretary and no one else, and there is no reason why, if he is the appointing authority, he cannot dismiss those appointed by him with the aid of S. 18 of the l915-Act. In Kanta Devi v Union of India & Another [(2003) 4SCC 753], the Apex Court held that when prior recommendation is necessary, it does not make the recommending/approving authority the appointing authority, and that just because the IGs approval was required for the purpose of appointment or promotion, the position of the Commandant as the appointing authority would not change and the IG would not become the appointing authority, and further that the appointing authority was Commandant and since the DIG is of higher rank, there was no illegality in the order of dismissal passed by him. Briefly the facts of the case reveal that the employee was charged with misconduct and on the basis of a departmental enquiry held under the Central Reserve Police Force Rules, 1955 was dismissed from service by Deputy Inspector General (DIG) of Police. The statutory appeal against the order aforesaid having been dismissed, a writ petition was filed which was allowed by a learned single Judge on the only ground that since prior approval of Inspector General (IG) of Police was imperative in case of appointment or promotion, and as a natural corollary, any termination without approval of the IG could not be sustained. The Division Bench in appeal, however, restored the order of dismissal on the ground that the IG was not the appointing authority, and the DIG being an officer superior to the Commandant, who was the appointing authority, had the authority to pass the order of dismissal. Prior approval for dismissing an employee by some one who was not the appointing authority was thus held would not vitiate the order of dismissal.
19. Insofar as, the contention raised by Shri Rao with regard to illegality of the order of suspension for want of payment of subsistence allowance is concerned, we may only mention that even though, at the time the applicant approached this Tribunal by filing the present Application, he may not have been made over the subsistence allowance, but surely and admittedly, an order dated 14.10.2009 has been passed by which subsistence allowance has been made admissible to him. Learned counsel representing the respondents has given us a chart showing the payment of subsistence allowance to the applicant month-wise vide various cheques. Confronted with the position aforesaid, there was hardly any debate on the issue. We may, however, observe and direct that the applicant would be regularly paid the subsistence allowance till such time he continues to be under suspension.
20. Shri Parag Tripathi, the learned ASG, urged that for small infractions in following the procedure, this Tribunal may not interfere with the order of suspension, particularly when the allegations against the applicant are of serious nature, and two criminal cases of accepting bribe have been registered against him by the premier agency like CBI. The contention of the learned counsel is that the power of this Tribunal is akin to powers exercised by the High Court under Article 226 of the Constitution, as may be made out from the decision of the Apex Court in L. Chandrakumar v Union of India & Others [(1995) 1 SCC 400], and the writ jurisdiction is the prerogative of a judge and may not be issued even if there may be some infraction of the procedure, when the facts and circumstances of the case may not justify any relief to the applicant. We would have really gone into this issue, but once, we find no merit even with regard to the procedural lapses as pressed into service by the applicant, there would be no need to give our views on the contention of the learned counsel as noted above.
21. Finding no merit in the present Application, in view of the discussion made above, we dismiss the same leaving, however, the parties to bear their own costs.
22. Before we may part with this case, we may mention that it is the case of the applicant that he has been falsely involved in the two criminal cases and in fact he is victim of a frame-up. The FIRs came to be registered on complaints which were primarily against others and the name of the applicant was added later on. Surely, this is not for this Tribunal to go into this issue, and rightly so, the learned counsel representing the parties have not concentrated on this issue as well. However, it would be travesty of justice if the applicant remains under suspension for long time and in the meanwhile, his term may even come to an end. That being so, we only observe that the Government shall see to it that the investigation is done expeditiously. Surely, if in the investigation the applicant is found to be guilty, the law will take its own course, however, if the applicant is found to be innocent, immediate steps should be taken to consider revocation of the suspension of the applicant.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/