Madhya Pradesh High Court
K.K.Tamrakar vs The State Of Madhya Pradesh on 19 June, 2014
1
W.P.8471/2014
(K.K.Tamrakar vs. State of Madhya Pradesh & anr.)
Writ Petition No.8471/2014
19.06.2014
Shri Rajendra Tiwari, learned senior counsel with Shri
Sanjayram Tamrakar, learned counsel for petitioner.
Shri R.N.Singh, learned senior counsel with Shri Swapnil
Ganguly, learned Deputy Government Advocate for State of
Madhya Pradesh and its functionaries.
With consent of learned counsel for the parties, petition is
finally heard.
Petition at the instance of Joint Director, Health Services
Incharge Regional Director, is directed against the order dated
04.08.2014; whereby, he has been placed under suspension in
contemplation of a departmental enquiry.
At the very outset learned senior counsel has confined the
challenge only to the competency of Commissioner, Health
Services in suspending the petitioner.
Since the order of suspension has been challenged only on
the ground of competency, preliminary objection raised on behalf
of respondent State of Madhya Pradesh of alternative remedy of
statutory Appeal is over ruled.
Before dwelling on the contention on behalf of the petitioner that being in the cadre of Director, it is beyond the powers of the Commissioner, Health Services despite there being a delegation of power in his favour under Rule 12(2) (a) and (b) of 2 W.P.8471/2014 (K.K.Tamrakar vs. State of Madhya Pradesh & anr.) the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules 1966 to impose penalties specified in clause (I) to (IV) of Rule 10 on class-I Government servant, to place the petitioner under suspension, apt it would be take note of provisions contained in the Madhya Pradesh Public Health and Family Welfare (Gazetted) services Recruitment Rules 2007 which is applicable to the petitioner and the relevant provisions contained in 1966 Rules.
Rule 5 of the Rules 2007 specifies the classification of service, the scale of pay attached thereto and the number of posts included in the services in accordance with the provisions contained in Schedule-I. As per Schedule-I, 4 posts of Director in grade Rs.37400-67000 + grade pay 10000; 10 posts of Director, State Training and Management Institute Gwalior/Regional Director, Health Services/ Director State Blood Transfusion Council/Additional Director State Aids Cell in grade Rs. 37400-67000 + grade pay 8900, 01 post of Director, State Health and Information Education & Communication Bureau, Bhopal in grade Rs.37400-67000 + grade pay 8700; 13 posts of Joint Director, Health Services (Divisional Officers 07/Head Quarter 6) are included in group A class-I posts in grade pay 37400-67000 + grade pay 7600 (besides, other posts specified in Schedule-I which we are not presently concerned with). 3 W.P.8471/2014
(K.K.Tamrakar vs. State of Madhya Pradesh & anr.) Contention on behalf of the petitioner is that being a Joint Director, he is in the cadre of Director, therefore, exempted from being proceeded against by the Commissioner, Health Services.
The cadre in a service jurisprudence as held in Chakradhar vs. State of Bihar : AIR 1988 SC 959, has a definite legal connotation.
"7-A. In service jurisprudence, the term 'cadre' has a definite legal connotation. In the legal sense, the word 'cadre' is not synonymous with 'service'. Fundamental Rule 9(4) defines the word 'cadre' to mean the strength of a service or part of a service sanctioned as a separate unit. The post of the Director which is the highest post in the directorate, is carried on a higher grade or scale, while the posts of Deputy Directors are borne in a lower grade or scale and therefore constitute two distinct cadres or grades. It is open to the Government to constitute as many cadres in any particular service as it may choose according to the administrative convenience and expediency and it cannot be said that the establishment of the Directorate constituted the formation of a joint cadre of the Director and the Deputy Directors because the posts are not interchangeable and the incumbents do not perform the same duties, carry the same responsibilities or draw the same pay. The conclusion is irresistible that the posts of the Director and those of the Deputy Directors constitute different cadres of the 4 W.P.8471/2014 (K.K.Tamrakar vs. State of Madhya Pradesh & anr.) Service. It is manifest that the post of the Director of Indigenous Medicine, which is the highest post in the Directorate carried on a higher grade or scale, could not possibly be equated with those of the Deputy Directors on a lower grade or scale."
Rule 9(4) of Madhya Pradesh Fundamental Rules defines cadre as "the strength of a service or a part of a service sanctioned as a separate unit."
Thus, a cadre is not synonymous to post, as construed by and on behalf of the petitioner.
The petitioner being a Joint Director in a grade Rs.15600-39100+Grade Pay 7600, though placed in group A Class-I service alongwith the Directors and even the Chief Medical & Health Officers and other officers lower in rank than the petitioner as specified in Schedule-I, it cannot be said that the petitioner is holding the post of Director.
Now, coming to relevant provisions of Rules 1966. Rule 2(d) of 1966 Rules defines "disciplinary authority"
to mean :
"(d) 'disciplinary authority' means the authority competent under these rules to impose on a Government servant any of the penalties specified in rule 10;"
Clause (a) and (b) of Sub-Rule (2) of Rule 12 stipulates :
"(2) Without prejudice to the provisions of Sub-rule 5 W.P.8471/2014 (K.K.Tamrakar vs. State of Madhya Pradesh & anr.) (1), but subject to the provisions of Sub-rule (3), any of the penalties specified in Rule 10 may be imposed on-
(a) a member of State Civil Service by the Appointing Authority or the authority specified in the Schedule in this behalf or by any other authority empowered in this behalf by a general or special order of the Governor;
(b) a person appointed to a State Civil post by the authority specified in this behalf by a general or special order of the Governor, or by the Appointing Authority or the authority specified in the Schedule in this behalf."
Sub-Rule (1) of Rule 9 of 1966 Rules specifies :
"9 (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 Governor 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
(b) where a case against him in respect of any criminal offence is under investigation, inquiry of trial:"
That a gazette notification dated 21.03.2006 is brought on record as Annexure R-1 with the return which delegates certain disciplinary powers to the Commissioner, Health Services in the following terms :
"No.C-6-6-2005-3 EK. - In pursuance of clause (a) and 6 W.P.8471/2014 (K.K.Tamrakar vs. State of Madhya Pradesh & anr.)
(b) of sub-rule (2) of Rule 12 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, the Governor of Madhya Pradesh hereby empowers Commissioner, Health Services, Public Health and Family Welfare Department, Madhya Pradesh to impose the penalties specified in clauses (I) to (IV) of Rule 10 of the said rules on Class I (except the officers of the rank of Director) Government servants posted under his control."
Careful reading of the notification would reveal that except the officers holding the rank of Director, all Class-I Government servant posted under the control of Commissioner, Health Services, can be visited with the penalty specified in clause (I) to (IV) of Rule 10 of 1966 Rules.
Since the petitioner does not hold the rank of Director, it is well within the powers of Commissioner, Health Services, being a disciplinary Authority, to place him under suspension.
For these reasons, no interference is caused with the suspension of the petitioner.
Consequently, petition fails and is dismissed. No costs.
(SANJAY YADAV) (JUDGE) anand