Lok Prahari, Thru. General Secy. vs State Of U.P.,Thru. Chief Secy.,U.P. ... on 23 May, 2017

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Allahabad High Court

Lok Prahari, Thru. General Secy. vs State Of U.P.,Thru. Chief Secy.,U.P. ... on 23 May, 2017

1. This writ petition has been filed as a Public Interest Litigation under Article 226 of Constitution of India on behalf of Lok Prahari through its General Secretary Satya Narain Shukla, a retired Officer from Indian Administrative Services, presently practicing as an Advocate, seeking following reliefs :-

1. issue a writ, order or direction in the nature of mandamus to the respondent No.1 to follow strictly the provisions of IAS (Cadre) Rules and IAS (Pay) Rules in the matter of postings of IAS Officers in the State.

2. issue a writ, order or direction in the nature of quo warranto to respondents No.3 to 6 to show the authority under which they are holding the various posts in gross violation of IAS (Cadre)/IAS (Pay) Rules.

2A. issue a writ, order or direction in the nature of quo warranto to respondent No.7 to show the authority under which he is holding the post of UP Jal Nigam in gross violation of IAS (Cadre)/IAS (Pay) Rules.

2B. issue a writ, order or direction in the nature of mandamus to respondent No.1 to ensure that the respondents No.3 to 7 do not hold more than one post in violation of Rule 11 of the IAS (Cadre) Rules.

3. issue a writ, order or direction in the nature of mandamus not to post more than 1 Principal Secretary and 2 Secretaries in the Chief Minister's office in violation of the IAS (Cadre) Rules and the Regulations issued thereunder,

4. issue a writ, order or direction in the nature of certiorari quashing the appointments of Principal Secretary rank officers as Member (Judicial) in the Board of Revenue.

5. issue a writ, order or direction in the nature of mandamus not to post Principal Secretary rank IAS officers as Member (Judicial), in the Board of Revenue.

6. allow this WP with costs to the petitioner organisation.

2. Petitioner claims to be a Society registered under Societies Registration Act, 1860 (hereinafter referred to as ''Act, 1860') constituted to uphold Constitution and enforcement of Rule of Law. Members of society are mainly retired senior civil servants having interest and concern in the governance in general and administration in particular. Former Chief Election Commissioner and former Governor of Gujarat, Shri R.K. Trivedi, is Chief Patron of society.

3. Number of Public Interest Litigations have been filed by petitioners from time to time raising various issues including unauthorized allotment of bunglows to Ex-Chief Ministers, misuse of Vidhayak Nidhi etc.

4. Coming to dispute raised in this writ petition, it is said that in exercise of power under Article 309 of Constitution of India read with Article 312, All India Services Act, 1951 (hereinafter referred to as ''Act, 1951') has been enacted and amended from time to time. Act, 1951 was enacted for regulating recruitment and conditions of service of persons appointed to "All India Administrative Services" and others 'Services' notified in this Act; Exercising rule framing power under section 3 of 1951 Act, Central Government has framed Indian Administrative Services (Cadre) Rules, 1954 (hereinafter referred to as ''IAS (Cadre), Rules, 1954'). The Cadre Controlling Authority is 'Central Government' and review of cadre is the responsibility of Central Government. However for any urgent need of temporary nature, State Government is empowered to add to the 'Cadre', one or more posts on its own as provided in proviso to Rule 4(2) of IAS (Cadre) Rules, 1954. State Government of Uttar Pradesh is flouting the provisions of aforesaid statutory rules and Govt. of India's notifications issued thereunder, in various ways, notably the following:-

(i) Creation of parallel Secretariat in Chief Minister's office in violation of Regulations Rule 4 (1) of IAS (Cadre) Rules.

(ii) Entrusting a few selected officers with more than one cadre and/or ex-cadre posts, in violation of Rule 11 of IAS (Cadre) Rules, 1954.

(iii) Posting Principal Secretary level officer as Member (Judicial) in Board of Revenue in violation of Rule 4(1) of IAS Cadre Rules, 1954 and Articles 312/320 of Constitution of India.

5. With regard to creation of parallel Secretariat, petitioner has said in detail in para 17 to 30, which read as under:-

17. That according to Rule 6 of the Secretariat Manual Secretariat is supposed to be the Apex Office of the State Government. According to para 13 (1) of the Secretariat Instructions, 1982 issued by the Governor under Rule 12 of the Rules of Business, 1975, framed under Article 166 of the Constitution, the Chief Secretary is the official head of the Secretariat. There is no provision in the Secretariat Instructions or in the Secretariat Manual for any Cabinet Secretariat or Chief Minister's office. Para 5 of the Secretariat Instructions only provides that the Chief Secretary or such other officer as may be appointed by the Chief Minister shall be Secretary to the Cabinet. Rule 266 of the Secretariat Manual provides that the duty to keep the Minister's office in proper condition and to exercise supervision over its staff is that of the Private Secretary. A copy of the said Rule 266 of the Secretariat Manual is annexed as Annexure 4 to this WP.

18. That earlier the Chief Minister had only on Secretary and later Principal Secretary, and the work of Secretary to the Cabinet was looked after the Chief Secretary. However, the present Chief Minister, in utter disregard of the aforesaid statutory provisions has created a parallel Secretariat in her office headed by an Additional Cabinet Secretary who in turn works under Cabinet Secretary with a full fledged Cabinet Secretariat. Copies of the relevant pages of the Official Directory of U.P. Government for 2009 are annexed as Annexure 5 to this WP.

19. That as against only one post of Principal Secretary and 2 posts of Secretary allowed under the Cadre Regulations referred to above, the Chief Minister's office has been having 3 to 5 Principal Secretaries and 4 to 5 Secretaries. Copies of the work distribution among them from time to time are collectively annexed as Annexure 6 to this WP. Presently the Chief Minister's office has 3 Principal Secretaries (Sarva Shri Net Ram, Durga Shankar Mishra and Raj Pratap Singh) and 3 IAS Secretaries (Sarva Shri Navneet Sahgal, Anil Sant and Chandra Bahnu). In the absence of the mandatory requisite approval of the Central Government stipulated in the Second Proviso to Rule 4 (2) of the IAS (Cadre) Rules the posting of the Principal Secretaries and Secretaries in excess of the sanctioned strength is clearly illegal and prima facie unsustainable.

20. That moreover, these numerous Principal Secretaries and Secretaries in the Chief Minister's Secretariat in charge of various departments are not required to put up files to the Chief Minister. According to Rule 266 of the Secretariat Manual the work of putting up files to the Minister-in-charge is that of his personal staff like Private Secretaries and Personal Assistants. Moreover, under para 16 of the Secretariat Instructions cases are to be submitted by the Secretary in the Department to which the case belongs to the Minister-in-charge. Under para 58 of the statutory Secretariat Instructions departmental secretaries in all cases are required to address their notes to the Minister-in-charge of the subject or department, as the case may be. Thus, as per these statutory provisions there cannot be any intermediary between the departmental Secretary and the Minister-in-charge. The Principal Secretaries and the Secretaries in the Chief Minister's office have no locus standi to examine the files submitted to her as Minister-in-charge.

21. That actually, these officers are performing the function of advising the Chief Minister on the proposals in the files which is the function of the departmental Secretaries and the Chief Secretary. This is evident from the charts at Annexure 6 to the WP, according to which the officer in the Chief Minister's office are required to "examine" the files submitted to Chief Minister. Thereby they are not only duplicating the work which is already performed by the departmental Principal Secretaries/Secretaries but this also shows distrust in them by having their proposals scrutinised by officers who have no locus standi in the disposal of the business of those departments as per the Secretariat Instructions issued under the Rules of Business.

22. That the Principal Secretaries/Secretaries in the Chief Minister's are acting as super departmental Secretaries/Principal Secretaries and have greater say in the disposal of government business on a/c of their position to influence the Chief Minister because of their proximity to her. This has resulted in the highly undesirable situation of having power without responsibility because it is the departmental Secretary who is responsible under Rule 10 of the Rules of Business which runs as follows -

"10 Responsibility of Departmental Secretaries - In each department, the Secretary (which term includes a Special Secretary or Joint Secretary, if any, in independent charge) shall be the administrative head thereof, and shall be responsible for the proper transaction of business and the careful observance of these rules in that department and if he considers that there has been any material departure from them he shall personally bring the matter to the notice of the Minister-in-charge and the Chief Secretary".

23. That in the case of the Principal Secretaries/Secretaries in the Chief Minister are only performing the function of putting up files to the Chief Minister, then it is a sheer waste of senior administrative officers as this is precisely work of the personal staff of the Chief Minister. Moreover, this has also resulted in an anomalous situation that while these senior officers are being wasted in the CM's Secretariat several Principal Secretaries/Secretaries have been entrusted with more than one important departments. Departments of Home etc. and Appointments, Personnel and Vigilance being held by one officer (Shri Fateh Bahadur) is a glaring case in point.

24. That the petitioner understands that the files meant for the Chief Minister's orders are put up by the Additional Cabinet Secretary to the Cabinet Secretary who generally records the orders of the Chief Minister thereon at his own level. Since the Additional Cabinet Secretary heading the Chief Minister's office works under the Cabinet Secretary, the Cabinet Secretary is the head of this virtual parallel Secretariat functioning in the Chief Minister's office. Thereby he acts as de facto super Chief Secretary overshadowing and undermining the Chief Secretary's statutory position as Head of the Secretariat.

25. That the post of the Additional Cabinet Secretary could not be created and filled up without consulting the UP Public Service Commission as required under Article 320 of the Constitution of India.

26. That moreover, no legislative approval seems to have been obtained through Schedule of New Demand for creation of the post of Additional Cabinet Secretary as required under the provisions of the Budget Manual and Article 205 of the Constitution. A copy of the relevant paras of the Budget Manual is annexed as Annexure 7 to this WP.

27. That in the case of T.N. Administrative Service Officers Association (Supra) the Apex Court deprecated the practice of states resorting to creation of such ex-cadre temporary posts without consulting the Central Government and contrary to Cadre Rules.

28. That as held by the Apex Court in (2206) 12 SCC 148 any policy regarding creation of posts etc must be in consonance with the Constitution and should not be arbitrary, unreasonable or otherwise objectionable. In the instant case, creation of ex-Cadre posts of Cabinet Secretary and Additional Cabinet Secretary in the Cabinet Secretariat and Chief Minister's office is ex facie against the IAS Rules, unreasonable tends to underline the time tested system of administration. The state governments cannot be permitted to have a parallel system of State Administration alien to the statutory Rules framed under the Constitution and All India Service Act.

29. That with a parallel Secretariat functioning in the Chief Minister's office under the Cabinet Secretary the position and authority of the Chief Secretary stands severely undermined. The Chief Secretary, the formal head of the Secretariat no longer has the stature and authority to coordinate and oversee functionaries at the Secretariat and filed levels. Any undermining of this post, which has been pinnacle Rule 54 of IAS of the administrative hierarchy in the state would lead to severe deterioration in the governance of the state as seen today and demoralisation of the entire Cadre. It will also erode a political character of the Civil Services. Moreover, while having the power to "examine" the recommendations of the departmental Principal Secretaries/Secretaries and even Chief Secretary, the officers in the Chief Minister's officer and the Cabinet Secretary have no accountability in the present system.

30. That according to Rule 7 and items 19 and 31 of the First Schedule of the Rules of Business 1975 of UP Governments proposals involving any important charge of policy or practice or adversely affecting the policy laid down by the Central Government are required to be put up to the Cabinet. However, no such Cabinet approval seems to have been taken for creating a parallel Secretariat in the Chief Minister's office and ensuring of more than one post to one officer in a large number of cases in violation of the IAS Cadre Rules.

(emphasis added)

6. With regard to entrustment of holding more than one cadre or ex-cadre posts, a few selected officers have been named in para 31 to whom more than one posts have been allowed to be held. It reads as under :-

1. Shri Ravindra Singh - (i) Additional Cabinet Secretary, (ii) Principal Secretary, PWD and Housing Departments, (iii) CEO, UP Exspressways, (iv) CEO Industrial Development Authority.

2. Shri Net Ram - (i) Principal Secretary to CM, (ii) Principal Secretary Food and Civil Supplies and Stamps and Registration Departments.

3. Shri Navneet Sehgal - (i) Secretary to CM, (ii) Secretary Energy, Estate, Urban Poverty Allegation, and Additional Energy Departments (iii) CMD Power Corporation (Iv) CMD UPSIDC, (v) Chairman Jal Nigam and (vi) Additional Resident Commissioner.

7. Similarly with regard to posting of officers of IAS cadre in the rank of Principal Secretary as member (Judicial) in Board of Revenue, petitioner has named Sarva Shri Anil Kumar, Sanjeev Saran (under suspension at the time of filing of writ petition), Rakesh Bahadur (under suspension at the time of filing writ petition), Ms. Neeta Chaudhary, Mukul Singhal, Sailesh Krishna, Dr. Lalit Verma, Raju Sharma, Deepak Singhal, J.N. Chamber, Dinesh Singh, R.C. Srivastava, N.S. Ravi, Pradeep Shukla, V.S. Pandey.

8. It is said that Board of Revenue has been used as a convenient dumping ground for an inconvenient officer and this kind of posting is in violation of Rule 4 of Indian Administrative Services (Cadre) Rules, 1954.

9. It is lastly pleaded that petitioner has raised its grievances by making representation to Chief Secretary on 5.4.2010 but the same has not been attended at all.

10. Rules 3, 4 and 5 of IAS (Cadre) Rules, 1954 reads as under :-

3. Constitution of Cadres - (1) There shall be constituted for each State or group of States as Indian Administrative Service Cadre.

(2) The cadre so constituted for a State or a group of State is hereinafter referred to as a 'State Cadre' or, as the case may be, a 'Joint Cadre'.

4. Strength of Cadres - (1) The strength and composition of each of the cadres constituted under Rule 3 shall be as determined by regulations made by the Central Government in consultation with the State Governments in this behalf and until such regulations are made, shall be as in force immediately before the commencement of these rules.

5. Allocation of members to various cadres. - (1) The allocation of cadre officers to the various cadres shall be made by Central Government in consultation with the State Government or the State Government concerned.

(2) The Central Government may, with the concurrence of the State Governments concerned transfer a cadre officer from one cadre to another cadre.

11. We find nothing therein to control appointment and posting of any member in Indian Administrative Service but in a particular manner it only talks strength and composition of cadre constituted under Rule 3 and provides that same shall be determined by Regulations made by Central Government in consultation with State Government in this behalf. In exercise of powers under Rule 4 of IAS (Cadre) Rules, 1954; Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955 (hereinafter referred to as 'Regulations, 1955') have been framed which contain Schedules specifying strength and composition of cadres of various States and Union Territories. Rule 8 provides that every 'cadre posts' shall be filled up by a 'cadre officer' and he shall not hold an ex-cadre post in excess of number specified for the concerned State under item 5 of Schedule to Regulations, 1955. Simultaneously Rule 8(3) provides that State Government may with the prior approval of Central Government appoint a cadre officer to hold an ex-cadre post in excess of number specified for the concerned State in item 5 of Schedule to Regulations, 1955 and, for so long as the approval of Central Government remains in force, the said ex-cadre post shall be deemed to be addition to the number specified in item 5 of the said Schedule.

12. Rule 11 provides for holding more than one post by a cadre officer and reads as under :-

"11. Holding of more than one post by a cadre officer - (i) The State Government concerned in respect of the post borne on the state cadre or the Joint Cadre, as the case may be, for the purpose of facilitating leave arrangements for a period not exceeding six months, direct that any two cadre posts or a cadre post and an equivalent post may be held simultaneously by one single cadre officer.

(ii) where the State Government is of the opinion that it is necessary so to do, it may, with prior approval of the Central Government, order that the posts directed by it be held simultaneously by one single cadre officer under sub-rule (i), may continue to be so held for a period beyond six months, but in any case, not beyond twelve months from the date with effect from which the posts were first directed to be so held under sub-rule (i)."

(emphasis added)

13. In para 31 of writ petition, it is said that holding of two posts beyond six months is not permissible. It ignores rule 11 (ii) where an approval of Central Government is necessary whereupon this arrangement could have continued for more than 6 months. There is no averment that rule 11 (ii) has been violated and approval of Central Government has not been obtained. Moreover from the facts stated in para 31, we find that Ravindra Singh is said to be holding two cadre posts namely Additional Cabinet Secretary and Principal Secretary PWD and other two posts i.e. (iii) CEO, U.P. Expressways and (iv) CEO, Industrial Development Authority which is an office of Industrial Development Authority. We find that as cadre posts are specified under Regulations, 1955. There is nothing to show as to which posts are cadre posts and which are not. If it is an ex-cadre post, the restriction of rule 11 is not attracted. Similarly Shri Net Ram is holding two cadre posts which is permissible under Rule 11 and so on.

14. In fact, we find that writ petition has been filed with casual drafting and relevant facts have not been pleaded properly. Serious allegations have been made but no serious attempt has been made to plead specifically relevant facts to show any or a wholesale violation of statutory provisions of Act,1951 and Rules and Regulations framed thereunder.

15. There is another angle to the entire dispute. Basically dispute raised by petitioner relates to service matters i.e. appointment and posting of various officers of Indian Administrative Services on cadre and non-cadre posts. "Service matters" in relation to posts and service under Central Government can be agitated by filing an application under Section 19 of Administrative Tribunal Act, 1985 (hereinafter referred to as 'Act, 1985') and it holds jurisdiction to look into such dispute at the first instance. In L.Chandra Kumar Vs. Union of India 1997 (2) SCR 1186, a Constitution Bench in paras 94 and 95, has held that High Court shall not entertain writ petition at the first instance with regard to "service matters" which are within the domain of Act, 1985. At the first instance matter shall be raised before Tribunal. Therefore, service dispute relating to members of IAS, prima facie, is in the domain of Act, 1985.

16. Lastly but not the least, service matters will not be raised in a public interest litigation and in respect of service matters, PIL is not maintainable. Repeatedly Apex Court in a catena of authorities has held that Courts should not entertain PIL raising service disputes.

17. In view of the above discussions, we do not find that the present writ petition, as a Public Interest Litigation justify any action on the part of this Court. Petitioner is not entitled for any relief, as prayed for.

18. Accordingly, petition is dismissed with cost which we quantify to Rs.25,000/-.

Order Date :- 23.5.2017 Chitranjan

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Allahabad High Court