Punjab-Haryana High Court
Date Of Decision: October 3 vs The Punjab Vidhan Sabha on 31 October, 2012
Author: A.K. Sikri
Bench: A.K. Sikri, Rakesh Kumar Jain
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. Civil Writ Petition No.18906 of 2011 (O&M)
DATE OF DECISION: October 31, 2012
Smt. Shashi Mishra and others
.....Petitioners
versus
The Punjab Vidhan Sabha, Chandigarh and others
.....Respondents
2. Civil Writ Petition No.75 of 2012 (O&M)
Smt. Shashi Mishra
.....Petitioner
versus
The State of Punjab and another
.....Respondents
CORAM:- HON'BLE MR.JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN, JUDGE
Present: Mr.D.V. Sharma, Senior Advocate with
Ms.Shivani Sharma, Advocate for the petitioners
Mr.Gurminder Singh, Advocate for respondent No.1
Mr.J.S. Puri, Addl. Advocate General, Punjab
..
A.K. SIKRI, C.J.:
In CWP-18906-2011, there are 13 petitioners, who are all employees of Punjab Vidhan Sabha, working as Reporters. Their dates of joining and designations are as under:-
"Sr. Name Date of Joining Designation
No.
1. Smt.Shashi Mishra September, 1982 Editor of Debates
2. Pardeep Kumar Gupta January, 1987 Chief Reporter
3. Padam Parkash March, 1990 Reporter
4. Amrik Singh May, 1990 Reporter
5. Jaswinder Singh December, 1992 Reporter
CWP-18906-2012 -2-
6. Surinder Kumar December, 1992 Reporter
7. Gurkirat Singh May, 1993 Reporter
8. Jaspal Singh January, 1996 Reporter
9. Harjinder Singh August, 1998 Reporter
10. Smt. Karamjit Kaur May, 1999 Reporter
11. Birendra Singh August, 2000 Reporter
12. Darshan Kumar November, 2000 Reporter
13. Rajneesh Kumar June, 2006 Reporter"
Earlier there were no service rules for the employees of the Punjab Vidhan Sabha Secretariat framed either by State legislature or by the Speaker of the Vidhan Sabha. The Secretariat had been following previous precedents/executive orders issued by the Speaker for the purpose of further promotion of its employees. Insofar as Reporters are concerned, they used to be promoted to the posts of Under Secretary, Deputy Secretary, Additional Secretary and Secretary. The petitioners have given instances of few Reporters who had risen to the level of Secretaries and some who retired as Additional Secretaries. The rules have now been framed which are known as The Punjab Vidhan Sabha Secretariat Service Rules, 2007 (hereinafter referred to as "Service Rules, 2007") for which notification No.1EA-97/Const. Article 187/3 dated 15.2.2007 was published in the Punjab Government Gazette (Extraordinary). Rule 3 of these rules provides that the service of the Secretariat shall comprise of the posts specified in Appendix-A to these rules which mentions various Group-A, Group- B, Group-C and Group-D posts as well as ex-cadre posts (co-terminus with the Hon'ble Speaker and Deputy Speaker). Rule-9 stipulates the appointing authority and reads as under:-
"9. Appointing Authority. - Appointment to the posts in the service shall be made:CWP-18906-2012 -3-
(a) in the case of Secretary by Speaker in consultation with the Government;
(b) In the case of other posts, by the Speaker.
Provided that Speaker, in very special circumstances and keeping in view the experience and valuable/excellent work done/being done by the Secretary, may recommend to the Government for the extension of service of the incumbent up to two years."
Method of recruitment is provided in Rule-11 of these rules, as per which, the recruitment to a post or class of posts may be made by the method (Appendix-B), viz. by promotion, by permanent transfer or deputation; and by direct recruitment.
As per Appendix-A, posts of Secretary, Deputy Secretary, Editor of Debates and Chief Reporters amongst others, are treated as Group-A posts. The manner of appointment to these posts, as per Appendix-B, is stipulated in the following way:-
Sr. Designation Method of Educational and other Direct Transfer/ No. of post Appointment qualification for Deputation appointment by promotion 1 2 3 4 5 6
1. Secretary (i) By Promotion By promotion from By deputation of
(ii) By Transfer amongst the a suitable Officer Additional Secretary/ belonging to Deputy Secretary/ another service of Under Secretaries the Government who are Law of Punjab or Graduates/ Post State Judicial Graduates in Political Service with a Science/ Public minimum Administration of a experience of ten recognized University years on a post with working involving practical experience for a knowledge of minimum period of Secretarial eight years on such Administration post; and Provided that the Parliamentary Speaker may for Practice and reason to be recorded Procedure or CWP-18906-2012 -4- relax any of the experience of above conditions; Legislative work.
Provided further that if no suitable candidate is found from amongst the above i.e. Additional Secretary/Deputy Secretary/Under Secretary the Speaker, may recommend for extension of service of the incumbent of the post of Secretary till he attains the age of 60 years.
xx xx xx xx xx xx
3. Deputy Selection From amongst Under - -
Secretary Secretaries who are
Law Graduate/Post
Graduate in Political
Science/Public
Administration with
an experience of
three years on such
posts.
xx xx xx xx xx xx
5. Editor of Selection From Chief Reporters - -
Debates who are Graduate and
having five years
experience as such.
xx xx xx xx xx xx
9. Chief Promotion From amongst the - -
Reporter English and
Hindi/Punjabi
Reporters on the
basis of their inter se
seniority having ten
years experience as
such.
xx xx xx xx xx xx"
Vires of Service Rules, 2007, are challenged by these petitioners in the present writ petitions. They have also sought quashing of the actions taken under the aforesaid rules, in particular, giving the charge of post of Deputy Secretary to respondent No.3 (in CWP-18906-2012) after his retirement.
Smt. Shashi Mishra, who is petitioner No.1 in CWP No.18906 of 2011, has also filed CWP No.75 of 2012 in which she is the sole petitioner. In this writ petition, she is impugning the orders dated 20.12.2011 whereby the additional charge of the post of Deputy CWP-18906-2012 -5- Secretary has been withdrawn from her. Challenge is on the same legal grounds as taken in the first petition, viz., vires of the Service Rules, 2007. Thus, legal issue involved in both the petitions is identical.
Before we advert to grounds on which challenge to the validity of these rules is laid, we would like to take note of the constitutional provisions. These are Article 187 and Article 309 of the Constitution and read as under:-
"187. Secretariat of State Legislature.
(1) The House or each House of the Legislature of a State shall have a separate secretarial staff:
Provided that nothing in this clause shall, in the case of the Legislature of a State having a Legislative Council, be construed as preventing the creation of posts common to both Houses of such Legislature.
(2) The Legislature of a State may by law regulate the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the House or Houses of the Legislature of the State.
(3) Until provision is made by the Legislature of the State under clause (2), the Governor may, after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the Assembly or the Council, and any rules so made shall have effect subject to the provisions of any law made under the said clause.
309. Recruitment and conditions of service of persons serving the Union or a State.
Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate CWP-18906-2012 -6- Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act." To put it in strait-jacket, main plank of attack qua these rules is that Service Rules, 2007 have been framed by the Speaker of Vidhan Sabha, whereas, competent authority is the Governor and, therefore, these rules are without jurisdiction and null and void. To substantiate the submissions, learned senior counsel appearing for the petitioners submitted that Articles 187 and 309 of the Constitution are pari materia in nature. Under Article 309, the appropriate legislature was competent to frame the law to regulate the recruitment and conditions of service of persons appointed to public services and the posts in connection with the Union or any State. As per proviso to Article 309, in the absence of any Act by the appropriate legislature, the President or the Governor, as the case may be, is authorised to frame the rules regulating recruitment and conditions of service of persons appointed to the services of Union/State. All India Services Act, 1951, was enacted by the Parliament by virtue of Article 309.
Mr. Sharma, learned senior counsel for the petitioners, argued that the State legislature is competent to make law to regulate the recruitments and conditions of persons appointed to the secretariat staff of the Vidhan Sabha by framing an Act. However, as per Article 187(3), in the absence of any such law made by the State legislature, it was the Governor of the State, who after consultation with the Speaker of Vidhan Sabha, could make the rules regulating the recruitments and service conditions of the persons appointed to the secretariat staff of the Vidhan Sabha. It was argued that as there is no statute enacted by the Punjab Legislature so far, Article 187(3) gets CWP-18906-2012 -7- triggered and it is the Governor of Punjab who has the necessary power to frame the rules, albeit in consultation with the Speaker. He argued that the Speaker himself could not frame such rules but, in the instant case, it is the Speaker who had framed the rules and, therefore, these rules were ultra vires, without jurisdiction and null and void.
In order to demonstrate that Speaker had framed the rules, Mr.Sharma referred to Bulletin No.10 dated 9.3.2006 issued by Punjab Vidhan Sabha, which pertains to 11th Session from 2.00 P.M. to 5.49 P.M. on 9th March, 2006. As per the recording of this bulletin, the Hon'ble Speaker laid on table of the House the Service Rules, 2007. He argued that it is the Speaker who had framed and laid these rules on the table of the House which was inappropriate, more so, when these were not even approved by the Governor of Punjab. The submission was that this objection was raised by 14 Legislators on 9th March, 2006 itself with a request to get the required formalities completed. They also objected that the Members were not given sufficient time and reasonable opportunity to study and react to the proposed rules which was against the ethos and high traditions of democratic functioning. He also submitted that though the notification states that the rules are "duly approved" by the House, but there was no such approval given by the House nor shown by the respondents. To buttress the submission, reference was made to letter dated 19.7.2007 written by Mr. Tikshan Sud, Parliamentary Affairs, Medical Education & Research, Forests & Wildlife and Labour Minister, Punjab, addressed to the Speaker, objecting to the manner in which rules were framed, inter CWP-18906-2012 -8- alia, pointing out that "as per official record, these rules were not passed by the House and these Service Rules were sent to the Hon'ble Governor for his consent for notifying the same." Learned senior counsel also drew our attention to letter dated 27.10.2006 sent by the Speaker to S. Bir Devinder Singh, MLA, in which the Speaker had accepted that it is he who had framed these rules and placed before the Vidhan Sabha under Article 187(2) of the Constitution, arguing that he was competent to do so. His competency was questioned by the L.R. & Secretary to the Government of Punjab in his note dated 4.1.2007. Thus, it was argued that such rules could not stand judicial scrutiny.
Secretary, Punjab Vidhan Sabha as well as State of Punjab have filed their separate affidavits. Insofar as Punjab Vidhan Sabha is concerned, it is alleged that the petitioners have given misleading information. According to it, the correct position is as under:-
"(a) In the Allocation of Business Rules 2007, entry at Sr. No.15 of the Parliamentary Affairs Department, as wrongly reproduced in Para-4 of the C.W.P. has been amended as under:-
"Appointment of Secretary, Punjab Vidhan Sabha and all other matters relating to the post.
(b) The Government had already withdrawn the letter dated 20.5.1999 (Annexure P-5) vide its letter dated 6.10.2006 (Annexure R-8 of reply) as fully explained in Reply to Para-6 of C.W.P. Above issues were raised in a Session of the Assembly and subsequently discussed and considered in various meetings of the Government Assurances Committee. The petitioners minutely knew everything from the beginning to the end as they note down the proceeding of the meetings of Committees as well as that of Sessions of the House.CWP-18906-2012 -9-
5. As fully explained in relevant reply to Para of C.W.P., the letters/communications (Annexure P-3 to P-7, P- 11, P-14, P-15, P-17, P-18, etc.) between the Executive Governor and the State Legislature, meant for internal consultations and advice, confer no enforceable legal or any right upon the Petitioners. It is improper on the part of the petitioners to attach such communications, which least concern them in any way."
It is argued on behalf of the Vidhan Sabha that no specific procedure to frame the Service Rules of the Staff of a Legislature was prescribed in Article 187 of the Constitution and, therefore, it was open for the Speaker to resort to some procedure prevalent in the State Legislature with regard to other rules. As such, the Speaker adopted the procedure prescribed under rules 145(1), 146(1) and 232(3) of the Rules of Procedure and Conduct of Business in the Punjab Vidhan Sabha (Punjab Legislative Assembly). These rules provide as under:-
"145 (1) Where a regulation, rule, sub-rule, bye-law, etc., framed in pursuance of the Constitution or any Act, is laid before the House, the period specified in the Constitution or the relevant Act, for which it is required to be laid, shall be completed before the House is adjourned sine die and after prorogued, unless otherwise provided in the Constitution or the relevant Act.
(2) Where the specified period is not so completed, the regulation, rule, sub-rule, bye-law, etc., shall be re-laid in the succeeding Session or Sessions until the said period is completed by computing together the period for which the same was laid in that Session and the succeeding Session or Sessions.
146 (1) A member desiring to move an amendment to the regulation, rule, sub-rule, bye-law, etc., laid on the Table under rule 145(1), shall give three days' notice of his/her amendment to the Secretary.
xx xx xx xx 232 (3) If notice of such amendment has not been given within five days, the recommendations of the Committee shall be deemed to have been approved by the House and on the expiry of the said period the amendments to the Rules as recommended by the Committee shall be notified under orders of the Speaker in the Gazette."
CWP-18906-2012 - 10 -
It is, thus, argued on behalf of the Vidhan Sabha that since no amendment was suggested in the Service Rules after these rules were laid on the table of the House under Rule 145(1) on 9.3.2006, the same were deemed to have been approved by the State Legislature under Rule 232(3) of the Rules of Procedure. It is further argued that objections raised by the Members were duly considered and the Speaker being constitutional head of State Legislature Secretariat notified, after approval by the State Legislature, the Service Rules, 2007 in Punjab Government Gazette on 15.2.2007 under Article 187(2) of the Constitution. As regards invocation of Article 187(3) of the Constitution, the contention is that it is an enabling Article and not obligatory. Article 187(3) of the Constitution would come into picture subject to the provisions made by the Legislature of the State, as it says that until provision is made by the Legislature of the State under clause (2), the Governor "may", after consultation with the Speaker, make Service Rules. The provision, in the shape of Service Rules, 2007 having been made by the State Legislature in terms of Article 187(2), Article 187(3) was not applicable in the present case.
Insofar as State of Punjab is concerned, the factual position, which is narrated, is that under Article 187(2) of the Constitution of India it is the State legislature which is competent to frame rules but no such rules under this provision have been framed. It is further pointed out that Governor has also not framed any rules in exercise of the powers conferred under Article 187(3) of the Constitution. It is clarified that Draft Rules, 2007 were sent by the Speaker to the State legislature for approval, but they have not been CWP-18906-2012 - 11 -
approved till date and, therefore, these Draft Rules have no sanctity of law. The stand taken is that this Court should decide the matter taking note of the provisions contained in Article 187 of the Constitution.
We have considered the submissions of learned counsel for the parties and have also gone through the pleadings which are taken note of in the preceding paragraphs.
The entire case rests upon the interpretation which is to be given to Article 187 of the Constitution, particularly, Clause (3) thereof. This constitutional provision is to be applied on the facts of the present case. The admitted facts, which emerge from the record, may be recapitulated in brief before discussing the provisions of Article 187(3) of the Constitution. The Draft Rules were framed by the Speaker, who had laid them on the table of the House on 9th March, 2006. It has also come on record that the legislature had not approved the same. The question is as to whether the Speaker is the competent authority. As per respondent No.1, Secretariat is an independent organisation for all intents and purposes. It is maintained that the Speaker has been and is the competent authority in the matter of appointments, promotions, etc. of the members of the staff of Assembly Secretariat and since this matter was overdue, to make everything transparent, the Speaker had framed these rules and placed before the Vidhan Sabha under Article 187(2) of the Constitution.
Insofar as Article 187(2) of the Constitution is concerned, it is the State legislature which may frame the rules regulating the recruitment and conditions of service of persons appointed to the CWP-18906-2012 - 12 -
secretarial staff of the House or Houses of the legislature of the State. Admittedly, the State legislature has not framed the instant rules, as accepted by all the respondents. Even as per the Speaker though the rules were laid before the legislature, after framing by him, State legislature has not passed those rules.
In the absence of any provisions made by the State legislature, Article 187(3) empowers the Governor to make such rules which have the effect, subject to the provisions of any law made under the said clause. The Governor, however, has to make these rules after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be. However, the rule making authority is vested with the Governor. Insofar as the Speaker is concerned, only role assigned to him is that of consultation. The Speaker cannot himself frame these rules.
Rules, as framed, disclose an ambivalence situation. Though while giving the notification number, there is a mention of Article 187(3). It is otherwise stated that the rules are framed in exercise of powers conferred by Article 187(2) of the Constitution. So, it is not clear whether rules are framed under Article 187(3) or under Article 187(2). Further, it is mentioned that in exercise of those powers (Article 187(2), the Speaker is pleased to make the rules, after duly approved by the House. This does not specify the requirement of either Article 187(2) or Article 187(3). As per Article 187(2), it is the legislature which has to make law regulating the recruitment and service conditions, etc. of the secretarial staff of the Vidhan Sabha.
CWP-18906-2012 - 13 -
Under Article 187(3), it is the Governor who is empowered to make rules, after consultation with the Speaker of the legislative assembly, in the absence of law made by the legislature under Clause (2) of Article
187. Clearly, neither of the two procedures is followed. Under what circumstances and by what provisions, the legislature approved the action of the Speaker in making the rules in question is not disclosed. On the contrary, a specific stand is taken by the Government of Punjab that no such approval was ever given.
We are, therefore, of the opinion that the procedure, as laid down under Article 187(2) or Article 187(3) of the Constitution, has not been followed in framing the rules in question. These rules framed by the Speaker in the manner mentioned is unknown to law and is not in conformity with Article 187 of the Constitution. Therefore, these rules have no sanctity of law. Accordingly we quash these rules as ultra vires the Article 187 of the Constitution of India.
Writ petitions allowed in the aforesaid terms with no order as to costs.
( A.K. SIKRI )
CHIEF JUSTICE
October 31, 2012 (RAKESH KUMAR JAIN)
pc JUDGE