Bombay High Court
Eknath Bayaji Gadkari vs Union Of India on 15 October, 2009
Author: Swatanter Kumar
Bench: Swatanter Kumar, A.M. Khanwilkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.669 OF 2009
Eknath Bayaji Gadkari, )
Chairman, Textiles Committee, )
Age 51 yrs., Off. Business, )
Residing at 3/42, B.D.D. Chawl, )
N.M. Joshi Marg, Mumbai-13. ) .. Petitioner
Versus
1. Union of India, )
Through its Secretary to the
ig )
Ministry of Textile having office )
At Udyog Bhavan, New Delhi. )
2. Textiles Committee, )
having office at P. Balu Road, )
Prabhadevi, Mumbai-25. )
3. Vice Chairman, Textiles Committee, )
having office at P. Balu Road, )
Prabhadevi, Mumbai-25. )
4. The Secretary, Textiles Committee, )
having office at P. Balu Road, )
Prabhadevi, Mumbai-25. ).. Respondents
--
Mr. G.S. Godbole i/by Mr. S.S. Redekar for the petitioner.
Mr. R.V. Desai, Senior Advocate with Mr. A.M. Sethna, Mr. P. K.
Khosla for the respondent No.1.
Mr. A.J. Rana, Senior Advocate with Mr. L.S. Shetty i/by & M/s. L.S.
Shetty & Associates for the respondent Nos.2 to 4.
--
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2
CORAM : SWATANTER KUMAR, C.J. &
A.M. KHANWILKAR, J.
Judgment reserved on : 7th September, 2009
th
Judgment pronounced on : 15 October, 2009
JUDGMENT (Per Swatanter Kumar, C.J.)
Heard. Rule. Rule made returnable forthwith. By consent of the parties taken up for hearing and final disposal.
2. The petitioner, who is the Chairman of the Textile Committee constituted by the Ministry of Textile, Udyog Bhavan, New Delhi under the provisions of the Textile Committee Act, 1963 (hereinafter referred to as "the Act"), has approached this court under Article 226 of the Constitution of India praying that Item No. 4A and the action on part of the respondents including it in the agenda of the 100th Meeting of the Textile Committee be struck down and para 50 of the decision taken on Item 20 in its 94th meeting and Item 1 of 95th meeting held on 16th February, 2006 and 27th April, 2007 respectively, being arbitrary, unconstitutional, ultravires and contrary to the provisions of the Act and the Rules ::: Downloaded on - 09/06/2013 15:13:32 ::: 3 framed thereunder be quashed and set aside. The petitioner has also prayed that the Office Order dated 24th March, 2009 issued by the respondents be set aside, and respondent No.2 be directed to withdraw the resolution dated 16th March, 2009.
3. The relevant facts are that the petitioner, who is chairman of the respondent No.2 committee, has referred to various provisions of the Act and Textiles Committee Rules, 1965 (hereinafter referred to as "the Rules") to contend that there is bifurcation of powers, functions, duties and authority of various functionaries in the hierarchy of the Textiles Committee. The Textiles Committee is the supreme governing body and the Chairman is responsible for conduct of the business of the Textiles Committee as per the powers vested in him under the Act and the Rules framed thereunder and/or the functions that are assigned or delegated to him by the Textile Committee. The Chairman and Vice Chairman normally act and are vested with such powers to the extent to which the Committee considers it expedient in terms of Ruls 33(1). In terms of Rule 35 of the Rules, the Secretary of the Textile Committee is to work under the general control of the Chairman or in his absence, the Vice ::: Downloaded on - 09/06/2013 15:13:32 ::: 4 Chairman who may grant or delegate the Secretary such powers and duties as may be deemed proper by the Committee. The powers and duties of the Secretary are defined under Article 35(c) of the said Rules. The Committee under Rule 34 is to pass a resolution for the purposes of delegating its powers in terms of Rule 33(1) to the Chairman and the Vice Chairman.
4. On 6th October, 2008, an Office Memorandum was issued by respondent No.1 delegating all the executive, financial and residuary powers in the Secretary of the Textiles Committee. The memorandum also stated that the decision taken in its 94th meeting and ratified in its 95th meeting which had passed such directions of withdrawing the powers vested hitherto in the Secretary, Textiles Committee had no previous sanction of the Central Government and hence was in clear violation of the Textiles Committee Rules, 1965.
These directions were challenged before this court in Writ Petition (Lodging) No.2411 of 2008 which was disposed of vide order dated 25th February, 2009 as the respondent No.1 therein agreed to withdraw the said Office Memorandum. The said order of the High Court reads as under:
::: Downloaded on - 09/06/2013 15:13:32 ::: 5"The learned counsel appearing for the parties have filed consent Minutes of Order signed by the learned counsel appearing for the respective parties. The same is taken on record and marked "X"
for identification purposes."
2. The learned counsel appearing for the Union of India submits that the competent officer i.e. Under Secretary to the Government of India is also present in court who has approved the consented Minutes of Order.
3. ig Writ petition is disposed of in terms of the consent terms marked "X". We make it clear that these are merely the consented Minutes of Order agreed upon between the parties and court has not adjudicated upon any of the terms or their applications. It should be clearly understood that the court has not decided any of the terms or their merit."
MINUTES OF ORDER
1. The Respondent No.1 withdraws the impugned Office Memorandum dated 6.10.2008 issued by the Joint Secretary to the Government of India, being Exhibit "H" to the Writ Petition.
2. The Petitioner withdraws the Office Note No.18/8/1993-A-D dated 10.7.08 and Office Note No. 18/8/1993-A-D dated 24.9.2008.
3. The Petitioner has assured the Court to issue instructions to the Secretary of the Textiles Committee for convening the meeting of the Textiles Committee within a period of 3 weeks and arrange to circulate the Agenda of the said Meeting amongst all ::: Downloaded on - 09/06/2013 15:13:32 ::: 6 the members of the Textiles Committee sufficiently in advance.
4. The disposal of this Writ Petition would not come in the way of exercise of statutory powers by the Central Government, i.e. Respondent No.1.
5. The Writ Petition is disposed of with the aforesaid terms with no order as to costs.
Mumbai.
Dated:this day of 25th February, 2009 FOR IDENTIFICATION ONLY ig Sd/-
Sd/-
(G.S. Godbole)/(S.S. Redekar) (Kiran J. Kandpile) Advocate for the Petitioner. Advocate for Respondent No.1.
Sd/-
(L.S. Shetty) Advocate for Respondent No.2.
5. In the 100th meeting of the Committee which was scheduled to be held on 16th March, 2009, an item in the agenda providing for delegation of the powers of Committee was included which was not accepted by the petitioner, as according to the petitioner, such powers could not be delegated when the Chairman of the Committee was in place. Inclusion of Item 4A with regard to ::: Downloaded on - 09/06/2013 15:13:32 ::: 7 delegation of powers was not approved by the petitioner but still the Secretary of the Committee, on 10th March, 2009, included the said item in the Agenda which the petitioner came to know only on 12th March, 2009. According to the petitioner, in the 100th meeting of the Committee held on 16th March, 2009, there was chaos when the said item No.4A was taken up for discussion. The petitioner brought to the notice of the Committee that he had disapproved the said item but it was still included in the agenda illegally and brought up before the Committee. Despite this, the said matter was discussed and the resolution was passed. In regard to this, the petitioner even served the respondents, a letter, through his advocate on 17th March, 2009, setting out the correct position and inter alia expressly stating that there was no delegation of powers of the Committee. Item No.4A and the Resolution passed thereon by the Committee on 16th March, 2009 reads thus-
"Item No.4A: To consider and decide delegation of its powers of committee as per provisions of the Textiles Committee Act and Textiles Committee Rules for efficient and smooth functioning of the Textiles Committee."::: Downloaded on - 09/06/2013 15:13:32 ::: 8
"46. After detailed deliberations on this item the Committee passed the following resolution:-
"The above agenda was discussed in the 100th Committee Meeting held on 16th March 2009 and the Committee Members deliberated on the Agenda Item at length. The members felt that the Committee deliberations and resolution regarding delegation of powers during 91st and 94th meeting of the Committee were not administratively proper and hence were not in the interest of the smooth functioning of ig the Committee. Also, the genuine objections raised with respect to 94th meeting decision of para 50 were not brought to the notice of the Committee. The Members also feel that the withdrawal of administrative and financial powers of the Secretary is uncalled for and not in the best interest of the organization. Hence, the Committee resolves to approve that the proposed delegation of the power should be vested to the Secretary, Vice-Chairman and Chairman as follows:
(1) Wherever the powers have not been expressly stipulated/delegated under the notified service regulations of the Textiles Committee, the Secretary, Textiles Committee, be declared the Head of Department/ Controlling Officer/Sanctioning Authority, or such other authority, as may be defined in GFR and various Central Government Service Rules adopted/followed ::: Downloaded on - 09/06/2013 15:13:32 ::: 9 by the Committee for governing the services of the officers and employees of the Textiles Committee and other administration matters; and (2) The Financial Powers of the Committee is delegated among the Secretary, Vice-Chairman and Chairman as per the details of the delegation of powers mentioned at Annexure-A."
6. After the above meeting was held contrary to law, according to the petitioner, he issued an Office Order dated 20th March, 2009 stating that there was no delegation of power to the Secretary or the Vice Chairman. Thereafter, the minutes of the said meeting were communicated to the petitioner on 23rd March, 2009 and it was also placed on record that Item No.4A was directed to be included in the Agenda items in furtherance to the directives issued by the Vice Chairman. The Office Order dated 24th March, 2009 clearly stated that whenever powers have not been expressly stipulated, financial and administrative powers would vest in the Secretary. This circular dated 24th March, 2009 has been annexed as Exhibit 'Q' to the petition which reads as under:::: Downloaded on - 09/06/2013 15:13:33 ::: 10
"TEXTILES COMMITTEE (Government of India, Ministry of Textiles) P.R. Balu Road, Prabhadevi, Mumbai 400025 No.18/8/2009-AD 24th March, 2009 OFFICE ORDER The Textiles Committee in its 100th meeting held on 16th March 2009, delegated financial and administrative powers as under:
a. Wherever the powers have not been ig expressly stipulated under the notified service regulations of the Textiles Committee, the Secretary, Textiles Committee, shall be the Head of Department/Controlling Officer/Sanctioning Authority, or such other authority, as may be defined in GFR and various Central Government Service Rules adopted/followed by the Committee for governing the services of the officers and employees of the Textiles Committee and other administrative matters; and b. The Financial Powers of the Committee is delegated as per the details of the delegation of powers mentioned at the Annexure.
2. Consequent on the above decision of the Committee, all the orders of delegation of powers issued prior to the current decision of the Textiles Committee shall stand superceded.
Sd/-
Pradeep Gupta
Secretary
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11
To: 1) All HOWs
2) All Regional Office of the Textiles
Committee
3) A/C Section
4) Guard file
Copy for information to:
1) The Chairman
Textiles Committee, Mumbai
2) The Vice-Chairman, Textiles
Committee, Mumbai
ig 3) Joint Secretary, Government of India, Ministry of Textiles, New Delhi.
4) Director (Internal Finance) Government of India, Ministry of Textiles, New Delhi."
7. The petitioner challenges the legality and correctness of the above resolution interalia on the ground that the rule making power of the Central Government has not been exercised in accordance with the provisions of the Act as the respondents are expected to act in the manner specified in the Act alone and in no other way. The Office Memorandum dated 6th October, 2006 was subject matter of Writ Petition (Lodging) No.2411 of 2008 which has been withdrawn by the respondents by order dated 25.2.2008. The ::: Downloaded on - 09/06/2013 15:13:33 ::: 12 present order and minutes have been passed on the same lines and are patently arbitrary. The Vice Chairman had no authority to include the item in the agenda when the Chairman was in place and he could exercise those powers only which were given to him by the Committee or the Chairman. The resolution is contrary to the provisions of Rule 37-C and places unreasonable restrictions on the powers of the Chairman. As such the action besides being arbitrary is even unconstitutional. The resolution also has the effect of setting aside the earlier duly confirmed minutes passed by the Committee in its 94th and 95th meetings which is impermissible particularly in the manner in which it was done.
8. On behalf of the respondents, separate replies were filed.
By refuting the claim of the petitioner, respondent Nos.2,3 and 4, in their common reply, have stated that the Chairman was usurping the power of the Textiles Committee and has committed certain irregularities as he appointed one Satyaveer Singh as Joint Director without approval of the Committee, against whom even FIR has been registered. It is averred that the agenda item No.4A was taken up for discussion and the decision was taken to pass a resolution to ::: Downloaded on - 09/06/2013 15:13:33 ::: 13 which the petitioner was not even willing that the issue be taken up in the meeting. The Textiles Committee is a supreme body and can take up any or all matters within its power under section 14 of the Act. Even earlier, the powers were exercised by the Secretary but were illegally withdrawn by the Chairman in the 94th Meeting of the Committee which was contrary to the provisions of section 14. The Minutes of the Meeting of 94th and 95th meeting to the extent were ineffective and to remove the illegality, these matters were deliberated upon and delegation of powers were effected to the Secretary in the 100th meeting dated 16th March, 2009. It is also stated that Item No.4A was included as per the directions received from the Ministry of Textile, Government of India. This direction of the Government has not been challenged by the petitioner in the present writ petition as such the consequential minutes are correct and are required to be implemented in the interest of the organization.
9. The respondent No.1 though has filed a different reply but primarily has taken the same stand that the minutes of the 94th and 95th meeting were illegal. The Textiles Committee is bound by ::: Downloaded on - 09/06/2013 15:13:33 ::: 14 the directions issued by the Central Government in terms of section 4(3) of the Act. It is disputed that there was any chaos at the 100th meeting. According to the respondents, the minutes have been prepared properly, as per the decision taken in the meeting and in accordance with the rules.
10. The petitioner filed rejoinder to these replies. He reiterated the averments made in the writ petition and while placing emphasis, prima facie, to section 3, stated that the Secretary of the Committee failed to act as per his instructions and worked as per the instructions issued by the Vice Chairman of the Committee who is not the competent authority. The disputed Item 4A, according to the petitioner, could not have been part of the agenda and its placing before the Committee for consideration, therefore, was improper and unjustifiable.
11. With reference to the above factual matrix, now we must examine the relevant provisions of the Act and the Rules. As already noticed, the Committee is the highest body in terms of the Act.
::: Downloaded on - 09/06/2013 15:13:33 ::: 15Section 2(b) defines "Committee" which means the Committee established under section 3 of the Act, while Section 2(a) defines "Chairman" which means the Chairman of that Committee. In terms of section 3, the Central Government has to constitute the Textiles Committee which is a body corporate having perpetual succession and a common seal. The Chairman is to be appointed by the Central Government, Vice Chairman shall be the Textile Commissioner, ex-
officio and Joint Secretary to the Government of India are ex-officio members of the Committee and shall consist of such other persons as appointed by the Central Government as its members. As per the provisions of section 4, the functions of the Committee shall generally be to ensure by such measures, as it thinks fit, standard quality of textiles both for internal marketing and export purposes and manufacture and use of standard type of textile machinery. The Committee is responsible for running the entire policy and decision making processes and at the same time, under section 4(3), the Committee is bound by such directions as may be issued to it by the Central Government for reasons to be stated in writing. Section 5 vests the Committee with all such powers as may be necessary or expedient for the purposes of carrying out its functions under the ::: Downloaded on - 09/06/2013 15:13:33 ::: 16 Act. Section 14 empowers the Committee to direct to delegate its powers or duties by general or special order, in writing. It may delegate all or any of the powers or duties subject to such conditions as may be specified in the order and such powers are to be exercised or discharged by officers or employees of the Committee as specified in the order. Sections 22 and 23 give power to the Central Government to make Rules and Regulations, respectively, but both of them are to be legislated for the purposes of carrying out the purposes and giving effect to the provisions of the Act. The regulations framed should be in relation to matters which provision is necessary or expedient for the purposes of giving effect to the Act.
Except stating that there shall be a Chairman of the Committee and he shall be Member of the Committee, the Act is silent with regard to the functions and powers which are to be performed by the Chairman. Section 14 obviously indicates that powers and duties are to be delegated by the Committee to its employees and officers. In furtherance to its power vested in the Central Government in terms of section 22 of the Act, the Central Government framed the rules called the Textiles Committee Rules, 1965. Rules 33 to 35 are the relevant rules which will have bearing on the matters in controversy ::: Downloaded on - 09/06/2013 15:13:33 ::: 17 before us. They read as under:-
33. Powers of Committee:
(1) Subject to the provisions of Rules 29, 30, 36 the Committee may be resolution, sanction any expenditure or enter into any contract involving expenditure from the Fund in the discharge of its functions under the Act.
Provided that the Committee shall not sanction any expenditure or enter into any contract involving such expenditure in excess of the budget allotments.
Provided further that the Committee shall not enter any contract involving an expenditure in excess of twenty five lakhs of rupees, or extending over a period of five years without the previous approval of the Central Government.
Provided also that the Central Government may having regard to the need of the occasion, by writing, authorise the Committee to enter into contracts involving expenditure in excess of the sum or contr4acts exceeding the period specified in the preceding proviso.
(2) The Committee shall have power to write off in any individual case losses upto twenty five thousand rupees.
(3) The Committee may incur expenditure outside India upto an amount not exceeding fifty thousand rupees on each individual item.
(4) The Committee may redesignate after ::: Downloaded on - 09/06/2013 15:13:33 ::: 18 consultation with Central Government any of the sanctioned post or posts to meet its requirements as the work on hand may require from time to time, subject to the condition that such redesignation of posts shall not result in increasing the sanctioned staff strength or incremental expenditure in the pay and allowance.
34. Delegation of powers to Chairman and Vice-Chairman:
The Committee may by a resolution, delegate its powers under sub-rule (1) of Rule 33 of the Chairman and the Vice-Chairman to the extent it considers expedient.
35. Powers and duties of Secretary :
The Secretary shall work under the general control of the Chairman or in his absence the Vice-Chairman, who may delegate to him such powers and duties as the Committee may consider necessary.
The Secretary shall:
(a) Implement all decisions taken by the Committee or any Standing Finance Committee or Ad hoc Committee;
(b) Co-ordinate the work of other officers and establishment of the Committee;
(c) Convene, under the instructions of the Chairman or the Vice-chairman meetings of the Committee, Standing Committee or Ad hoc Committee and draw up the agenda for each meeting under the directions of the ::: Downloaded on - 09/06/2013 15:13:33 ::: 19 Chairman or Vice-Chairman and supply the same to the members of the Committee, Standing Committee or Ad hoc Committee alongwith the notes of the meeting;
(d) Maintain the Minute Books;
(e) Furnish to the Central Government all reports, returns and other documents required to be furnished by or under the Act.
(f) Prepare the budget estimates of the ig Committee;
(g) Sanction re-appropriation of grants under such powers as may be delegated by the Committee and within such limits as may be prescribed by the Committee;
(h) Maintain accounts of receipts and expenditure of the Committee as provided for in sub-section (1) of Section 13 of the Act;
(i) Sanction tours of officers and staff working under the Committee and necessary advance to them for such tours and countersign all bills relating to pay, travelling allowances, contingencies and the like as may be3 authorised by the Chairman or the Vice-Chairman.
(j) Exercise and perform such other powers and duties as may, from time to time, be delegated to him by the Chairman or the Vice-Chairman.::: Downloaded on - 09/06/2013 15:13:33 ::: 20
12. As is evident from the above-referred provisions, as far as functioning of the Committee is concerned, the Committee has a power mainly to manage the finance with particular reference to sanctioning the expenditure or contract involving expenditure from the fund in discharge of its functions under the Act and Rule 34 requires the Committee to pass a resolution vide which it can delegate its powers under sub-rule (1) of Rule 33. Though this rule relates primarily to delegation of exercise of financial powers but in terms of section 14, the Committee is vested with general powers of delegation of its powers and duties to any of its employees and officers on such terms and conditions as it may consider fit and proper. Regulation 35 deals with the powers and duties of the Secretary. Either under the provisions of the Act or the Rules framed thereunder, the Secretary is not empowered to perform any duty or functions which have not been delegated to him by the competent authority and he has to work under the general control of the Chairman or in his absence, the Vice Chairman who may delegate to him such powers and duties as the Committee may consider necessary. Under these rules, Secretary is responsible for ::: Downloaded on - 09/06/2013 15:13:33 ::: 21 implementing the decision of the Committee or by the standing Finance Committee or ad hoc committees, coordinate the working of the work and establishment committees, convene under the instructions of the Chairman or Vice Chairman the Meetings of the Committees or other committees, maintain books and perform other functions. In terms of section 35(j), he can exercise and perform such other powers and duties as may, from time to time, be delegated to him by the Chairman and the Vice Chairman. Similarly, regulations have been framed by the Central Government which do not relate to the performance of duties and functions but primarily provide for the matters relating to recovery, issuance of notice etc.
13. We have already noticed that Section 14 of the Act is a general provision which embodies in itself authority to the Committee to delegate its functions and requires its officers or employees to exercise or discharge the duties which are delegated to them by a specific order. The financial powers of sanction of any expenditure or entering into any contract involving expediture from the Fund and for any expenditure to be incurred in discharge of its functions under the Act are vested in the Committee itself. Even the ::: Downloaded on - 09/06/2013 15:13:33 ::: 22 power of the Committee is controlled by the proviso to Rule 33(1) which requires that the Committee shall not sanction any expenditure or enter into any contract involving expenditure from the Fund and expenditure in excess of the budget allotment. This power is even further regulated by a limiting of expenditure of such amount to the extent of Rs.25 lakhs or entering into a contract extending over five years without the previous approval of the Central Government. The Committee is also empowered to write off losses but in the manner prescribed under the Rules. This provision indicates the intent of the Legislature to vest in the Committee alone the financial powers that too with a specific limitation. But for the provisions of Rule 34 these financial powers cannot be even delegated. Thus, Rule 34 is an important provision in this regard which empowers the Committee to delegate its powers under Sub-
rule 33(1) of the Rules but this delegation of powers has another inbuilt restriction. In terms of this provision, the powers can be delegated only to the Chairman and the Vice Chairman and that too to the extent the Committee considers it expedient and passes a resolution in terms of Section 14 of the Act. But for such specific delegation even the Chairman and the Vice Chairman would have no ::: Downloaded on - 09/06/2013 15:13:33 ::: 23 financial powers much less the Secretary of the Committee. Not only that the Secretary of the Committee has no powers but he has to perform his prescribed duties under the general control of the Chairman or in his absence the Vice Chairman. The duties and the powers of the Secretary, as explained in Rule 35, are more administrative in nature and also he has to exercise and perform such other powers and duties as may be delegated to him by the Chairman of the Vice Chairman in terms of Rule 35(J). Once the Act and the Rules contemplate a particular manner or method to be adopted for discharging of functions by different specified authorities under the Act then those authorities are expected to perform their duties and functions, and even delegate them but only in accordance with the provisions of the Act and the manner specified therein and in no other way. It is a settled principle of law that wherever the law contemplates a thing to be done in a particular way then it should be done in that way alone. Actio quaelibet It sua via : Every action follows its prescribed course. The Committee in its 100th meeting while dealing with the agenda Item 4A passed the resolution, of course, on the given facts and while noticing that the resolutions passed in the earlier meetings were not in the interest of ::: Downloaded on - 09/06/2013 15:13:33 ::: 24 the Committee and that the withdrawal of administrative power of the Secretary was not fully justified. But when taking financial decision it have declared the Secretary of the Committee to be head of the department, controlling officer and sanctioning authority. It further resolved and decided that the financial powers of the Committee were delegated amongst the Secretary, Vice Secretary and the Chairman as per the details mentioned in the Annexure which means that the financial powers have been delegated to the Secretary of the Committee. It apparently offends Rules 33 to 35 of the relevant Rules. As Rule 34 does not permit delegation of financial powers exercisable under Rule 33(1) to any other person except Chairman or Vice Chairman, the Respondents cannot take any benefit of Section 14 as that is the general provision while Rules 33 to 35 are special provisions. These special provisions relate to exercise of financial powers and by specific language prohibit delegation of powers to any other person by the Committee except the Chairman or the Vice Chairman. Such an action of the Respondent-Committee would be in violation to the specific rules and no provision to the contrary was brought to our notice.
::: Downloaded on - 09/06/2013 15:13:33 ::: 2514. It may also be noticed that the Secretary of the Committee could not be declared as head of the department in face of the fact that there is a Chairman and/or a Vice Chairman in the Committee already appointed. Once these statutory posts are handled by a duly appointed persons, then the Secretary of the Committee cannot be termed as head of the department in terms of Rules 34 and 35. He has to work under the general control of the Chairman and in his absence under the Vice Chairman. A person who is, by specific language of the provision and even under the scheme of the Act and the Rules framed thereunder is subordinate to another officer then such a subordinate officer cannot be head of the department when that higher officer/official is holding the higher post. There is a definite hierarchy contemplated under the provisions of the Act and executive direction or resolution cannot be passed which will be contrary to the specific provisions of the Act.
Once framers of the Rules have vested the Secretary of the Committee with very limited powers under the Rules 35-A to J then the scope of these powers can hardly be extended that too to the extent where it will be in direct contradiction to the specific provisions which prohibits directly or at least by necessary ::: Downloaded on - 09/06/2013 15:13:33 ::: 26 implications delegation of such powers to the Secretary of the Committee. The pure theory of law, according to eminent positivist jurist Kelsen requires that once the principal legislation or statutory rules though may be inferior to the principal act would have precedence over any other regulation or orders issued in exercise of its executive power. Thus, nothing could be done by executive orders or by resolution by the Committee which would offend or being in conflict with the statutory provisions.
15. In the case of R.P. Bhardwaj v. Union of India & Ors., (2005)10 SCC 244, the Supreme Court while dealing with the matter relating to the subordinate legislature, power and procedure for making alterations, held as under: -
"8. In connection with the abovenoted letter dated 23-11-1989, we would like to observe that nothing has been indicated as to why the position as prevailing earlier, by virtue of OM dated 19-7-1989 required any change. We also find that the position as provided by OM dated 19-7-1989 has not been done away with by the letter dated 23-11-1989. There was only a proposal for alteration of the period during which the two dates were to operate. According to the letter 23-1101989, noted above, for the selections which ::: Downloaded on - 09/06/2013 15:13:33 ::: 27 were to be held after 1989 the crucial dates would be July 1/October 1. It was also similarly provided by means of earlier OM dated 18-7-1989 but for the period prior to 1989 it would be 31st December.
What would be the purpose of the proposal to do away with the provision of crucial date being July 1/October 1 for the period prior to 1989, is not decipherable from the letter itself, nor, as fairly conceded by the learned counsel for the respondents, could he provide any explanation for the same. It was understandable if the criteria as provided by the OM dated 19-7-1989 were done away with altogether for all cases, if not, some reasons should have come forward as to why the same criteria were retained for selection for the period after 1989, but insofar as it related to the period prior to 1989, a change was proposed to be made. In case it was not reasonable to have this criterion of crucial dates for the period prior to 1989, in what manner would it be proper for the period thereafter, is not understandable. We have already noticed that the OM dated 19-7-1989 contained instructions to be noted and followed by all concerned. That position was prevailing when the proposal by means of letter dated 23-11-1989 was mooted. It was not yet issued as OM for compliance by all concerned as was done in respect of the OM dated 19-7-1989. In our view, it was still at a premature stage and before being final so as to be circulated by the Government of India for being followed by the authorities and the departments and all concerned, it seems to have been acted upon by the Service Commission against the OM which was in operation. Even if any implied approval is inferred by the Public Service Commission, it would be of no consequence since then too it would not be anything more than an approval of a proposal. An approved proposal would not replace an OM issued by the Government ::: Downloaded on - 09/06/2013 15:13:33 ::: 28 of India. Even after approval the Government may not issue any OM. The Commission wrongly acted upon the mere proposal."
16. It is a settled principle of law that administrative instructions even issued in furtherance to exercise of power of subordinate legislation do not have any overriding effect on operation of statutory provisions. The statutory rules once framed cannot be overridden by executive order or executive practice. A reference in this regard can be made to the decisions of the Apex Court in Ratan Kumar Tandon & Ors. v. State of U.P., (1997)2 SCC 161 and K. Kuppusamy & Anr. v. State of T.N. & Ors., (1998)8 SCC
469.
17. An attempt was made on behalf of the Respondents to argue that the impugned resolution was passed by the Committee in furtherance to certain instructions issued by the Central Government. No doubt, from the reply affidavit, it appears that the Committee has certain grievance against the manner in which the Chairman of the Committee functions and they noticed certain lapses or exercise of excessive authority not advantageous to the ::: Downloaded on - 09/06/2013 15:13:33 ::: 29 Committee. Even if that be so, though we are not concerned with that aspect of the matter, the Committee is obviously free to take appropriate action against the Chairman of the Committee in accordance with law. But that by itself will not give right to the Respondents to act contrary to the law.
18. It is true that the Central Government exercises great control over the Committee. The concerned Ministry is competent to overlook functioning of the Committee and ensure that its functions and duties are being performed in accordance with the provisions of the Act. The Central Government in furtherance to the Rules and Regulations framed had issued certain directions which may be binding on the Committee but it will be so only if such instructions were in consonance with the provisions of the Act and the Rules framed thereunder. Assumption of powers by any authority or forum including the Government and/or the Committee itself cannot be justified in the eyes of law. Defined powers can be exercised only by the authority which is duly empowered to act under the relevant provisions. Assumption of power on the plea that it was in the interest of administration to do ::: Downloaded on - 09/06/2013 15:13:33 ::: 30 so cannot be sustained in law when the exercise of delegated powers is apparently contrary to the specific provision. In the case of The Marathwada University v. Seshrao Balwant Rao Chavan, AIR 1989 SC 1582, the Supreme Court held as under:-
"19. Counsel for the appellant argued that the express power of the Vice-Chancellor to regulate the work and conduct of officers of the University implies as well, the power to take disciplinary action against officers. We are unable to agree with this contention. Firstly, the power to regulate the work and conduct of officers cannot include the power to take disciplinary action for their removal. Secondly, the Act confers power to appoint officers on the Executive Council and it generally includes the power to remove. This power is located under S. 24(1)(xxix) of the Act. It is, therefore, futile to contend that the Vice-Chancellor can exercise that power which is conferred on the Executive Council.
It is a settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation. Halsbury's Laws of England (Vol.I, 4th Ed., para 32) summarises these principles as follows:
"32. Sub-section of powers. In accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub-delegation of the power is authorised by express words or necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as ::: Downloaded on - 09/06/2013 15:13:33 ::: 31 impliedly authorising sub-delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind."
19. In the reply affidavit, the Respondents have stated certain facts and background that the Chairman of the Committee, in the past, had not been performing his functions properly and in accordance with law. The Petitioner as the Chairman of the Committee had even made some appointment, particularly of one Shri Satyavir Singh, in an illegal manner and had even withdrawn certain powers of the Secretary of the Committee. The ex officio member of the Committee had also raised certain objections which were not adhered to. Certain other facts have also been mentioned. It is averred that the Office Memorandum dated 6th October, 2008 was withdrawn by the Committee as it was a matter of dispute in the earlier Writ Petition (L) No. 2411 of 2008. If the Chairman of the Committee has misconducted himself or had not carried out the functions of the Committee properly, as we have already noticed, it is open for the Committee to take action in accordance with law. So far as the provisions of the Act and particularly the rules as aforenoticed are on the statute book, the ::: Downloaded on - 09/06/2013 15:13:33 ::: 32 Respondent-Committee cannot be permitted to act contrary to such provision. Whatever be the circumstances, the law must prevail and every authority in the hierarchy of the Committee should act in accordance with law. In our considered view, the provisions of Section 14 and Rules 33 to 35 clearly command that the Respondents cannot pass the impugned resolution. The resolution is in violation of these Rules and thus cannot be permitted to stand.
20. For the reasons aforerecorded, we make the rule absolute and quash the Resolution dated 16th March, 2009 passed in the 100th Meeting of Respondent No.2-Committee. However, we further clarify that the Respondents are at liberty to act in accordance with law and pass appropriate resolution delegating the powers to the competent authorities under the provisions of the Act and the Rules framed thereunder. The Petitioner is not entitled to any other relief. No order as to costs.
CHIEF JUSTICE A.M. KHANWILKAR, J ::: Downloaded on - 09/06/2013 15:13:33 :::