Punjab-Haryana High Court
State Of Haryana vs Anil Kumar, I.A.S. And Ors. on 1 December, 2003
Equivalent citations: (2004)136PLR724
Author: S.S. Nijjar
Bench: S.S. Nijjar, S.S. Grewal
JUDGMENT S.S. Nijjar, J.
1. We have heard the learned counsel for the State of Haryana and respondent No. 1-Anil Kumar in person.
2. Respondent No. 1 an IAS Officer of 1988 Batch, challenged the order passed by the State of Haryana dated 30.8.2001, whereby he was posted as Principal Director, Haryana Irrigation Rural Management Institute (for short "HIRMI"), by filing OA No. 1057/CH/2001 in the Central Administrative Tribunal, Chandigarh Bench. The application has been allowed by the leaned Central Administrative Tribunal. The posting of respondent No. 1 as Principal Director, HIRMI has been quashed and set aside with directions to the State of Haryana to consider posting of respondent No. 1 on a cadre post within a period of one month from the date of the receipt of a copy of the order.
3. Mr. Sehrawat, learned counsel appearing on behalf of the State has vehemently reiterated the submissions made before the learned Central Administrative Tribunal. He has submitted that the service conditions of respondent No. 1 are governed by the Indian Administrative Service (Cadre) Rules, 1954 (hereinafter referred to as "The Cadre Rules"). Under Rule 6 of the Cadre Rules, a cadre officer can be posted against a non-cadre post even without his consent, He made a particular reference to Rule 6(2)(ii), which provides that a Cadre Officer may be deputed for service in an Institution like HIRMI, without his consent. He has further submitted that the only limit on posting a Cadre Officer on a non-Cadre post is that deputation of Cadre officer should not exceed the state deputation reservation of 25% of the total number of Cadre posts. At the relevant time, the Cadre strength of IAS Officer in the State of Haryana was 115 and 28. Non-cadre posts were available for being filled on deputation. According to the learned counsel, it is not even disputed by respondent No. 1 and has been accepted by the Central Administrative Tribunal that the posting of respondent No. 1 on the non-cadre post was within the limit of the 25% posts reserved for deputation. That being so, the posting of respondent No. 1 could not have been termed as arbitrary or illegal by the Central Administrative Tribunal. Learned counsel has further submitted that the learned Central Administrative Tribunal has erred in law while interpreting Rules 8 and 9 of the Cadre Rules. According to the learned counsel, even though normally every cadre post has to be filed by a Cadre Officer, but it is not necessary always to appoint a Cadre Officer on a Cadre Post. Rule 8(2) only lays down that a Cadre Officer shall not hold an ex-cadre post in excess of the number specified for the concerned State under Item 5 of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955. Learned counsel further submitted that the Central Administrative Tribunal erred in law by taking into account that a number of Cadre, I.A.S. Officer were holding more than one Cadre posts. The learned Central Administrative Tribunal, according to the learned counsel also erred by taking into account that some non-cadre Officers were holding Cadre posts beyond a period of three months. Learned counsel has submitted that merely because some other officer has been granted a posting in violation of the statutory rules would not an enforceable right in favour of respondent No. 1. The case of respondent No. 1 was duly considered for posting after the order of his suspension was revoked and he has been posted as Principal Director, HIRMI in the exigencies of service.
4. In the written statement filed by Shri Anil Kumar, he has taken some preliminary objections. He has stated that during the 12th Lok Sabha elections held in February, 1998, he was posted as Deputy Commissioner, Rohtak-cum-Returning Officer for the said constituency. Late Ch. Devi Lal, father of the present Chief Minister, Haryana Mr. O.P. Chautala, contested the election. He lost the election by a narrow margin of 383 votes. After completion of counting, the Election Agent of late Shri Ch. Devi Lal applied for recounting of votes. Since the request was not justified, it was rejected by respondent No. 1 by passing a speaking order. Since, then Mr. Chautala has developed a personal grudge against respondent No. 1. To settle his personal grudge, Mr. Chautala ordered registration of a FIR against respondent No. 1 by concealing of official record. Against the registration of the FIR, respondent No. 1 made a representation to the National Commission for Scheduled Castes and Scheduled Tribes, a constitutional body constituted under Article 338 of the Constitution of India. The Commission conducted detailed enquiry and took the notice of the State Government. In this enquiry, the National Commission concluded that registration of FIR smacks of vindictiveness on extraneous consideration. The State Government was advised to withdraw the criminal action. He, therefore, submitted that the posting orders had been issued at the behest of the Chief Minister in violation of statutory rules and provisions of law. According to Shri Anil Kumar, the orders have been passed in violation of Rule 8(1)(2) and Rule 9 of the Cadre Rules. In the written statement, he has also stated that on the relevant time, in fact 59 IAS Officer were working against the Ex-Cadre posts. This list has been attached as Annexure R3 to the written statement. According to Shri Anil Kumar, a non-cadre Officer has to make room for a Cadre Officer who may have been appointed temporarily against the cadre post when a suitable Cadre Officer becomes available. In support of this submission, he has relied on Rule 9 of the Cadre Rules.
5. In response Mr. Sehrawat has submitted that it is not necessary for the State to consider each and every IAS Cadre Officer every time a non-cadre Officer is to be appointed on a Cadre post. Learned counsel has reiterated the submission that no legal right of respondent No. 1 has been infringed.
6. We have considered the submissions made by the learned counsel for the State of Haryana and Shri Anil Kumar. We have also perused the order passed by the Central Administrative Tribunal. We have also perused the pleadings of the parties.
7. We may at this stage refer to the observations made by the Supreme Court in the case of E.P. Royappa v. State of Tamil Nadu and Anr., A.I.R. 1974 Supreme Court 555, while considering a similar matter. In the aforesaid case, the Supreme Court has laid down the parameters within which the State action can be challenged being violative of Articles 14 and 16 of the Constitution of India. The Supreme Court observed as follows:-
"85. The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground it is really in substance and effect merely an aspect of the second ground based on violation of Article 14 and 16. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classes egalitarian society envisaged in the Constitution. Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principles? It is a founding faith to use the words of Bose, J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, combined and confined" with traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are Sworn enemies; one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action as distinguished from motive inducting from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice; in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16".
8. It deserves to be noticed here that the learned Central Administrative Tribunal did not express any opinion on the allegations of mala fide made against the Chief Minister. We have also considered only the arguments based on the various rules. A perusal of the order passed by the learned Central Administrative Tribunal shows that it has taken into consideration all the relevant issues. After examining the matter, the learned Central Administrative Tribunal has come to the conclusion that a Cadre Officer was earlier also posted as Principal Director, HIRMI. It has also been held that the post has been equated with the rank of Joint Secretary, Government of Haryana, Therefore, there would be no legal impediment for respondent No. 1 being posted as Principal Director, HIRMI. The Central Administrative Tribunal has correctly interpreted the provisions of Rules 8 and 9 of the Cadre Rules. Rules 6, 8 and 9 of the Cadre Rules may be reproduced as under for ready reference:-
"Rule 6. Deputation of Cadre Officers:
(1) A cadre officer may, with concurrence of the State Government or the State Governments concerned and the Central Government be deputed for service under the Central Government or another State Government or under a company, association or body of individuals, whether incorporated or not which is wholly or substantially owned or controlled by the Central Government or by another State Government.
Provided that in case of any disagreement, the matter shall be decided by the Central Government and the State Government or State Governments concerned shall give effect to the decision of the Central Government.
(2) A cadre officer may also be deputed for service under:-
(i) a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or, controlled by a State Government, a Municipal Corporation or a Local Body, by the State Government on whose cadre he is borne; and
(ii) an international organisation, an autonomous body not controlled by the Government, or a private body, by the Central Government in consultation with the State Government on which cadre he is borne;
Provided that no cadre officer shall be deputed to any organisation or body of the type referred to in item (ii), except with his consent;
Provided further that no cadre officer shall be deputed under Sub-rule (1) or Sub-rule (2) to a post (other than a post under the Central Government or under a company, association or body of individuals owned or controlled by the Central Govt.) carrying a prescribed pay which is less than, or pay scale, the maximum of which is less than, the basic pay he would have drawn in the cadre post but for his deputation.
Rule S. Cadre and ex-cadre posts to be filed by cadre officers;
(1) Save as otherwise provided in the rules, every cadre post shall be filed by a cadre officer.
(2) A cadre officer shall not hold an ex-cadre post in excess of the number specified for the concerned State under Item 5 of the Schedule to the Indian Administrative Service (Fixation of cadre Strength) Regulations, 1955.
Rule 9. Temporary appointment on non-cadre officers to the cadre posts.- A cadre post in a State shall not be filled by a person who is not a cadre officer except in the following cases, namely:-
(a) If there is not suitable cadre officer available for filling the vacancy;
Provided that when a suitable officer becomes available the person who is not a cadre officer, shall be replaced by the cadre officer:-
Provided further that if it is proposed to continue the person who is not a cadre officer beyond a period of three months, the State Government shall obtain the prior approval of the Central Government for such continuance;
(b) If the vacancy is not likely to last for more than three months;
Provided that if the vacancy is likely to exceed a period of three months, the State Government shall obtain the prior approval of the Central Government for continuing the person who is not a Cadre Officer; beyond the period of three months."
9. A perusal of the aforesaid rules would clearly show that Rule 6 deals with deputation of Cadre Officers. Under Rule 6(i), Cadre Officer can be deputed for service in Company, Association or body of individuals, provided the Company, Association or body of individuals is controlled by the State Government. Therefore, the State Government would be entitled to post a Cadre Officer as Principal Director, HIRMI. However, while exercising the discretion under Rule 6(2), the provisions of Rule 8 and Rule 9 cannot be totally ignored. It is to be noticed that Rule 8 is worded in mandatory terms and provides that every Cadre post shall be filled by a Cadre Officer. Therefore, in normal circumstances, a Cadre Officer would be entitled to be posted on a Cadre post. Rule 8(2) only lays out an outer limit on the exercise of the power of the State to post the Officers on ex-cadre posts. It provides that the State Government cannot post Cadre Officers on ex-cadre posts in excess of number specified for the concerned State under Item 5 of the Schedule to the Indian Administrative Service (Fixation of cadre Strength) Regulations, 1955. It is not a mandate to the State to post Cadre Officers on Ex-cadre posts equal to the numbers specified under item 5 of the Schedule. It only provides the maximum number of cadre officers that can be posted against Ex-cadre posts.
10. In the written statement, Shri Anil Kumar has categorically stated that at the relevant time 59 IAS Officers were working against the Ex-cadre posts. But this factual position has been denied by the State of Haryana in the replication. Even if the posting of respondent No. 1 is within the stipulated strength as given under item 5 of the Schedule, the same still has to be justified on the touch-stone of Rule 8(1) read with Rule 9. A conjoint reading of Rules 8 and 9 would show that to ensure that every cadre post is filled by a Cadre Officer, the temporary appointment of non-cadre Officers to Cadre posts has been limited to a period of three months. In case the temporary appointment of a non cadre Officer is to continue for more than three months, prior approval of the Central Government has to be obtained. A non-cadre officer can only continue if there is no suitable Cadre Officer available for filling up the vacancies. Furthermore, as and when a suitable Cadre Officer becomes available, the non-cadre Officer shall be replaced by the Cadre Officer. The Central Administrative Tribunal has observed that 11 IAS Officers were holding more than one Cadre posts at the relevant time. Three non-cadre Officers were holding Cadre posts. One particular non-cadre officer had been holding the Cadre post of Director Sports for more than three years. We are of the considered opinion that it is incumbent on the State of Haryana to consider the claim of respondent No. 1 against a Cadre post. Non-consideration of the case of respondent No. 1 would be violative of Rules 8 and 9 of the Cadre Rules. The Central Administrative Tribunal has rightly relied on the ratio of law laid down by the Supreme Court in the case of Union of India and Ors. v. S.L Abbas, J.T. 1993(3) S.C. 678 to come to the conclusion that the posting of respondent No. 1 as Principal Director being violative of statutory service rules was liable to be quashed. In the aforesaid judgment, it has been clearly observed as under;
"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it..."
11. Within the aforesaid narrow confines the Central Administrative Tribunal has correctly held that the orders passed by the State of Haryana are contrary to the rules and that respondent No. 1 is entitled to be considered for posting against the Cadre post.
12. In view of the above, we find no merit in the present writ petition and the same is hereby dismissed. No costs.
Sd/- S.S. Grewal, J.