Central Administrative Tribunal - Delhi
Tushar Ranjan Mohanty vs M/O Statistics on 27 November, 2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 1969/2015
Reserved on: 30.10.2015
Pronounced on: 27.11.2015
Hon'ble Mr. Justice Syed Rafat Alam, Chairman
Hon'ble Dr. B.K. Sinha, Member (A)
Tushar Ranjan Mohanty
S/o Shri Rabi Narayan Mohanty
SAG Officer of the Indian Statistical Service
Deputy Director General,
Rajasthan (West) Regional Office,
Field Operations Division,
National Sample Survey of Office,
Ministry of Statistics and Programme Implementation,
NSSO Bhawan, Hari Bhau Upadhyay Nagar,
Ajmer - 30004.
Currently residing at:
G-31, HUDCO Place Extension,
New Delhi-110 049. ...Applicant
(Applicant in person)
Versus
1. Union of India through
The Chief Statistician of India and Secretary,
Ministry of Statistics and Programme Implementation,
Sardar Patel Bhawan, Parliament Street,
New Delhi - 110 001.
2. The Secretary,
Appointments Committee of the Cabinet
and Establishment Officer,
Secretariat of the Appointments
Committee of the Cabinet,
Department of Personnel, Public Grievances &
Pensions, North Block, New Delhi-110 001.
3. Prof. TCA Anant,
The Chief Statistician of India and Secretary,
Ministry of Statistics and Programme Implementation,
Fourth Floor, Sardar Patel Bhawan, Parliament Street,
New Delhi - 110 001. ...Respondents
(By Advocate: Shri R.N. Singh)
2
ORDER
By Dr. B.K. Sinha, Member (A):
The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 challenging the Communication dated 22.05.2015 vide which the Appointments Committee of the Cabinet (hereinafter referred to as 'ACC') has extended the tenure of respondent no.3 as the Chief Statistician of India (Annexure A-1).
2. The applicant has prayed for the following relief(s):-
"8.1. To allow the present Application;
8.2. To quash and set aside the Communication dated 22.05.2015 (Annexure: A-1) as being bad in law;
8.3. To grant all consequential benefits thereof;
8.4. To issue any such and further orders/directions this Hon'ble Tribunal deems fit and proper in the circumstances of the case; and 8.5. To allow exemplary costs of the litigation."
3. The facts of the case, in brief, are that the applicant is a direct recruit officer of the Indian Statistical Service (hereinafter referred to as 'ISS') of 1981 Batch. The applicant claims that he has always been graded an outstanding officer, despite his long drawn legal battle with the respondents at various judicial fora. On 10.05.1999, the applicant was assessed as an outstanding officer and superseded two batches comprising nearly 40 officers. He is 3 presently serving in the Senior Administrative Grade (hereinafter referred to as 'SAG'). In 2008, the applicant had challenged the appointment of Dr. Pronab Sen as the Chief Statistician of India w.e.f. 21.02.2007 before the Tribunal by filing OA No.521/2008, which was not admitted on the ground of delay. In 2010, there was an advertisement for the post of Chief Statistician of India wherein under Para-4, it was specifically mentioned that the candidate should have attained the age of 52 years at the time of appointment. In response to the aforesaid advertisement, the applicant had also applied for the post of Chief Statistician of India requesting that the minimum age of 52 years which had been prescribed for the post be not insisted upon. It is the case of the applicant that when his request did not yield any result, he filed OA No.1306/2010 praying therein that the minimum age of 52 years which had been prescribed for the post be waived in his instance. The aforesaid OA was disposed of by the Tribunal vide order dated 22.04.2010 with direction to the respondent-Ministry to dispose of the representation of the applicant. In pursuance of the Tribunal's direction, the representation of the applicant was rejected on 18.06.2010 and the respondent no.3 was appointed as Chief Statistician of India, who joined the post on 30.06.2010 for a period of five years, which was to end on 29.06.2015. It is the case of the applicant that subsequently, 4 he joined as an intervener in OA No.1653/2010 filed by one S.K. Das challenging the appointment of respondent no.3, which was allowed by the Tribunal on 20.10.2011 on the basis of the arguments advanced by the applicant. However, the afore order of the Tribunal was quashed and set aside by the Hon''ble High Court of Delhi in WP(C) No.8124/2011 decided on 17.09.2013, to which the applicant had not been a party. Ever since the respondents have acted with vengeance against the applicant, he has been saddled with a large number of disciplinary proceedings and cases.
4. The applicant further submits that on 30.04.2015, the respondent-Ministry reconstituted a Search Committee for filling up the existing and likely vacancies of part-time positions in the National Statistical Commission (NSC) as per the provisions of the Government of India Notification No.85 dated 01.06.2005 read with Amendment Notification dated 07.04.2015. The Notification further provided that there was a vacant position of a Member in NSC and another vacancy likely to arise in 2015-16. However, the tenure of the respondent no.3 was extended vide the impugned order dated 22.05.2015 till he attains the age of 60 years i.e. the normal age of superannuation in Government of India subject to clearance from his parent organization. 5
5. The applicant has reiterated that the respondent no.3 had never been qualified to be the Chief Statistician of India and was lacking in the basic degree in Statistics having done his MA in Economic from Delhi School of Economics followed up with Ph.D in Economic from Cornell University in 1985. His entire acquaintance with Statistics was in the form of some special papers in Statistics which he had opted during his Master's course. The applicant further submits that the NSC has floundered under the Membership of the respondent no.3 and slipped in respect of all its parameters. On the other hand, the applicant is a true professional with major contributions to Statistics [page 88-91 of the paper book]. The applicant submits that qualification of minimum age of 52 years had been introduced in order to keep him away from the post of Secretary so that he might not become eligible for the same on account of being under age, whereas there had been no rationale in introducing such an age limit. It was downright, arbitrary and discriminatory, contends the applicant. It is further submitted that applicant's application dated 02.03.2010 seeking relaxation in age had not been considered though he attained the age of 51 years and 8 months and was found wanting by only 4 months.
6. The applicant has adopted the following grounds in support of his Application:-
6
(i) In the first place, the applicant has argued that though the respondent no.3 is eligible for re-
appointment but not for extension. Provision 4 of the Notification dated 08.05.2006 provides for the service conditions of Chairperson and Members of the National Statistical Organization, but it does not include provision for re-appointment of the Chief Statistician-cum-Secretary of the National Statistical Commission. Hence, the act of extension is de hors the law laid down for the purpose. However, during the course of oral submissions, the applicant appearing in person conceded that the respondent no.3 is eligible for re-appointment but after having followed the procedure laid down in provision 4 ibid. The applicant has further submitted that the post of Chief Statistician-cum-Secretary is a tenure post and, as such, the question of superannuation or extension does not arise. Here, the applicant has relied upon the decision of the Hon'ble Supreme Court in Dr. L.P. Agarwal V/s. Union of India [1992 (3) SCC 526].
(ii) The applicant has also submitted in para 4.69 of the OA (page 40 of the paper book) that the Minister of State for Statistics and Programme Implementation 7 had not approved the proposal that had been submitted to ACC, and even the file had been submitted to the DOP&T without having specified this fact. These facts have been denied by the respondents while replying to the contents of para 4.69 in the counter affidavit [para 17, page 174 of the paper book], which in fact is perjurious and the respondents stand to be prosecuted for the same;
(iii) The third ground which has been adopted by the applicant is that just because a thing had been approved by the ACC, it does not imply its correctness. A decision of the ACC holding the applicant unfit for promotion on ad hoc basis to the SAG of ISS had been set aside by this Tribunal vide its order dated 11.01.2007 in OA No. 1831/2006 which attained finality on account of withdrawal of these challenges by the respondent-Ministry before the Hon'ble High Court of Delhi following an amicable settlement. Extension of service, as referred to in OM dated 13.04.1988, means that it can only be given where the incumbent has retired after having attained the age of superannuation in the same cadre post being held by him. Here, however, this being a tenure and ex-cadre post to be 8 filled in on the basis of selection, the question of extension would not arise at all. Moreover, the extension of the service has been granted before the superannuation of the respondent no.3 which doubly compounds the mistake and makes the impugned extension of respondent no.3 bad in law. The fact that the respondent no.3 is eligible for re- appointment does not bestow upon him any right to get selected or of extension;
(iv) The applicant has further adopted the grounds of discrimination and mala fide. He has submitted that he had been denied a chance to compete and to be considered against the post in question by arbitrarily fixing the age of 52 years for which there was no call or occasion. It is further submitted that Pronab Sen, the then Chief Statistician of India, who was at the verge of retirement, was given an extension of two months, despite the fact that there was no provision for the same, that too when his appointment was for a fixed tenure of five years without providing that it could be extended further. This act of the respondents deprived the applicant of being considered for the post in question. This is the first opportunity when an artificial barrier had been put 9 in place of the applicant, who was short of qualifying age only by three months. In this regard, the applicant has relied upon series of decisions to contend that when a statute is in place, the same has to be necessarily followed, which are -
(a) King Emperor V/s. Khwaja Nazir Ahmed [AIR 1945 PC 18];
(b) Union of India V/s. W.N. Chadha [AIR 1993 SC 1082];
(c) State of West Bengal V/s. Swapan Kumar Guha [1982 (1) SCC 561];
(d) S.M. Datta V/s. State of Gujarat [2001 (7) SCC 659];
(e) Jehan Singh V/s. Delhi Administration [AIR 1974 (SC) 1146];
(f) State of Haryana V/s. Ch. Bhajan Lal [1992 Suppl (1) SCC 335];
(g) State of A.P. V/s. Viswanadula Chetti Babu [2010 (15) SCC 103];
(h) Gian Singh V/s. State of Punjab [2012 (10) SCC 303].
(i) Hotel & Restaurant Association & Anr. V/s. Star India Pvt. Ltd. & Ors. [2006 (13) SCC 753];
(j) Bhavnagar University V/s. Palitana Sugar Mill Pvt. Ltd. [2003 (3) SCC 111][para 24 & 25]
(v) The applicant has also cited instances of his challenge to appointment of the respondent no.3 in 10 OA No. 1653/2010 which had been struck down by the Tribunal vide order dated 20.10.2011. Since then, it is the contention of the applicant, the respondent no.3 has been acting in vengeance against him. The applicant has also cited numerous instances of such vengeance e.g. downgrading of ACRs; transferring him to a post below his subordinates; departmental proceedings being launched against him on trivial issues etc. etc. Thus, the applicant submits that mala fide is well established against the applicant.
(vi) The applicant has also rebutted the arguments of the respondents that the Cabinet has powers to take any decision on the ground that the power of the Cabinet is not absolute as every decision of the Cabinet is subject to judicial scrutiny. Moreover, it is in violation of FR 56 (d) inasmuch as there is no provision for giving extension beyond the age of superannuation.
(vii) The applicant further submits that the Prime Minister has the power to depart only from the Transaction of Business Rules, 1961 [hereinafter referred to as Business Rules] and from none others.
He is not vested with any political power 11 transcending the Constitution which he may exercise to the prejudice of the citizen. The powers of the Court under Articles 32 & 226 cannot be bypassed under a claim that the President has exercised political power.
(viii) The applicant has further submitted that Article 162 of the Constitution provides the strength to which the executive powers of the State can be exercised. In exercise of these powers, instructions can only be issued to fill in the gaps under cover by the Statute and not in violation of the statutory rules. The applicant has further relied upon the decision of the Hon'ble Supreme Court in Secretary, State of Karnataka V/s. Uma Devi & Ors. [2006 (4) SCC 1] that non-advertisement of a post would be in violation of Articles 14 & 16 of the Constitution [para 6 and 7]. Articles 14 & 14 occupy an exhort position within the Constitution as provided in Indra Sawhney v/s. Union of India [1992 Supp. (2) SCR 454]. These Articles are part of the basic structure of the Constitution and cannot be altered.
(ix) The applicant has further submitted that a complaint of shameful nature is pending against the respondent no.3 filed by one Maheswar Singh, 12 Secretary of one NGO namely Initiative for Development and Empowerment Alternatives (IDEA), copy of which has been annexed to this OA. The applicant submits that it was so shameful that he would not like to read out its contents in the open court and asked the question that whether such a person could have been appointed as Statistician General of India-cum-Secretary of the respondent- Ministry.
7. The respondents have filed a counter affidavit denying all the averments of the applicant. It is submitted therein that the applicant has filed almost 233 cases against the Union of India/respondent-Ministry at different fora in form of OAs/MAs/CPs/RAs/Writ Petitions/CPAs etc. On the other hand, the conduct of the applicant has been none too good and there are more than ten departmental enquiries/actions pending against him while five major and minor penalty chargesheets have been served upon him.
8. Sh. R.N. Singh, learned counsel for the respondents has drawn our attention to the fact that the post of Chief Statistician of India has been filled with the approval of the ACC on two occasions till now. However, in the instant case, pursuant to the recommendations of the Search Committee, the ACC approved the name of the respondent no.3 for 13 appointment as CSI with concurrent charge of the respondent-Ministry for a period of five years and the approval was conveyed vide order dated 0806.2010. As per the service conditions and ACC approval, the tenure of respondent no.3 was upto 29.06.2015 and he was eligible for re-appointment. The appointment of the respondent no.3 was challenged before this Tribunal in OA No. 1653/2010 which was decided by the Tribunal vide order dated 20.10.2011 striking down the appointment of the respondent no.3. However, the applicant had appeared in that OA only as an intervener and not as an applicant. The decision of the Tribunal was, however, quashed and set aside by the Hon'ble High Court of Delhi in WP(C) No. 8124 decided on 17.09.2013.
9. In the instant case, exercising its powers under the Business Rules and keeping in view the laid down service conditions, the ACC had approved the extension of tenure of the respondent no.3 beyond 29.06.2015 till he attains the age of 60 years i.e. the age of normal superannuation in Government of India. Order of the ACC was communicated vide order dated 22.05.2015 (Annexure RV) which is impugned in this OA.
10. The respondents have stated in rebuttal of first of the grounds in para 9 of their counter affidavit (page 168 of the 14 paper book) which is, for the sake of clarity, being extracted hereunder:-
"Under the Government of India (Transaction of Business) Rules, 1961, approval of the ACC is required for appointment to the post of Chief Statistician of India."
11. The argument which the learned counsel for the respondents has advanced is that the power to extend the service/tenure of an incumbent on any post/position is implicit and integral to the power of the ACC to appoint a person to that post/position. The learned counsel for the respondents has stated that it is an agreed position that the appointment of the respondent no.3 has been made by the ACC and drawn our attention towards Rule 6 (1) of the Business Rules which provides that the Prime Minister may from time to time, amend the Schedule by adding to or reducing the number of such Committees or by modifying the functions assigned to them. He further submitted that the Prime Minister has the power to permit or condone a departure from these rules to the extent necessary and has pointed out to Entry (iv) of Rule 12 of the First Schedule dealing with Standing Committees of the Cabinet and their functions which have been framed under the provision of Rule 6(i) of the Rules ibid. These provide that as per Clause
(iii) of the First Schedule, the Prime Minister has the discretion to decide all cases of disagreement relating to appointments between the Department or Ministry 15 concerned and the Union Public Service Commission and Clause (iv) empowers the Prime Minister to decide the cases of extension of tenure, under the Central Staffing Scheme(s) or relevant central tenure norms, or officers belonging to the All India Services and other Group 'A' Services beyond the prescribed limits. As per Clause (vii), the Prime Minister has the power to decide cases of extension of service beyond the age of superannuation under FR 56(d). He has further pointed out to Clause (xiv) which empowes the ACC to decide cases relating to employment or re-employment of any person, who has attained the age of superannuation, in any Department of the Government of India, any State-owned public corporation, company or enterprise, in a post, appointment to which requires approval of the ACC. Sh. R.N. Singh, learned counsel for the respondents has further drawn our attention to Annexure-I to the First Schedule wherein it has been provided that the ACC deals with all Secretariat appointments of officers of and above the rank of Joint Secretary in the Central Government or civilian officers in the Government of India carrying higher salary and referred to the Business Rules which duly and fully empower the Government to extend the tenure of any person working under the Government and that such decisions are taken by the Government in normal course of its functioning on the merits and exigencies of each case. The respondent no.3 16 was initially appointed on the basis of the recommendations of Search Committee on 30.06.2010, but his tenure has been extended on 22.05.2015 by the ACC on merit, and there is no question of any element of mala fide and illegality involved.
12. The learned counsel for the respondents further submits that the Notification dated 08.05.2006 is a Resolution and not a rule framed under Article 309 of the Constitution. It is the case of the respondents that if Rule 6(i) curtails the powers of the ACC, Rule 12 empowers the ACC to appoint/re-appoint or extend except where specified enactments/rules have been framed. The learned counsel further submits that the applicant has manifestly misconstrued the provisions of the service conditions in para 4.38 to 4.40 of the OA that the recommendation of the Search Committee was mandatory even for cases of extension of tenure. The respondents further submit that the words that "the tenure of the Chief Statistician of India will be five years or till he/she attains the age of sixty two years, whichever is earlier" indicate that the tenure of the Chief Statistician of India who is initially appointed on the basis of recommendations of the Search Committee will be for five years. The very next sentence that "The Chief Statistician of India will be eligible for re-appointment" indicates that the 17 Chief Statistician of India appointed for five years initially, following the Search Committee process, will be eligible for re- appointment/extension. Extension of tenure of Dr. Anant is therefore fully consistent with the provisions laid down in the service conditions. Accordingly, ACC had approved the extension of tenure of Dr. TCA Anant until he attains the age of sixty years, subject to the clearance of his parent organization.
13. The learned counsel for the respondents further submits that the respondent no.3 has been the Statistician General of India and Secretary of the Department for the last five years and finding his services praiseworthy, the ACC had approved his extension until he attains the age of 60 years, subject to clearance from his parent organization. The argument of the learned counsel is that the Government could have reduced the tenure as well. The appointment of the respondent no.3 has been made in exercise of the inherent powers of the Government and cannot be curtailed by the guidelines.
14. Referring to the question as to whether role of the Search Committee had not been followed, the learned counsel for the respondents has invited our attention to the decision of the Hon'ble High Court of Delhi in WP(C) No.8124/2011 decided on 17.09.2013 [para 43] wherein the 18 Hon'ble Court has held that the Tribunal had overlooked the fact that all over the world, for many posts applications are not invited and the personal knowledge of the members constituting the Search Committee is used as the reservoir to haunt for talent. Here, the Government was having a duly trusted officer and also the power to extend the tenure of respondent no.3, there is absolutely nothing wrong in giving extension to him. Drawing an analogy to the post of Cabinet Secretary, the learned counsel submitted that every Secretary level officer aspires to be selected as Cabinet Secretary, but the power of selection resides with the Government.
15. The respondents further submit that the present OA is not maintainable for a host of reasons e.g. no enforceable rights of the applicant have been taken away by the Government of India in granting extension to the respondent no.3 in inasmuch as it is not a promotional post of the ISS; none can lay a claim to be considered for that post no matter howsoever eminent he may be. In para 3.1, the word 'shall' is missing and instead the word 'will' is used indicating that a Search Committee is not mandatory. The learned counsel for the respondents submits that the applicant has been making incorrect averments, e.g. in para 4.69 (page 40 of the paper book) the applicant has submitted that the Minister 19 in-Charge of the respondent-Ministry had not seen the proposal and that it had not been made by the competent authority. The departmental Ministers are not members of the ACC, therefore, in para 17 of the counter affidavit (page 174 of the paper book), the respondents have questioned the submission of the applicant that the ACC comprised the Minister of State (independent charge) Statistics and Programme Implementation, Home Minister and the Prime Minister, being factually incorrect. To the averment of the applicant that the State Minister (independent charge) of the respondent-Ministry had not seen the proposal, the respondents in para 18 of the counter affidavit has stated that the Notification had been approved by the Minister on file.
16. Regarding submission of the applicant pertaining to a complaint containing allegations of shameful nature against the respondent no.3, the learned counsel for the respondents has submitted that being a senior officer, the applicant has been disregarding the fundamental rules. The Rules provide that the annexures should be attested by a person who has seen the original complaint in question sent to the Minister with copy to the Secretary, Central Vigilance Commission. Though the applicant has attested those documents but he could not have done so as he is neither 20 CVC nor the State Minister for the respondent-Ministry. Hence, the same could not have been relied upon. The applicant has been relying upon the documents without knowing the fate of the matter, which in fact had been looked into and closed, and for this, the learned counsel for the respondents has drawn our attention towards OM dated 18.05.2015 wherein it had been decided to close the complaint as being crude, vulgar and mischievous one made with the aim and object of slander and harassment while keeping alive the issue of civil and criminal culpability to be dealt with separately. This implies that the applicant has been trying to scandalize the whole issue and slander the respondent no.3 in the court without having seen the original documents or the fate of the complaint. The learned counsel for the respondents, therefore, strongly argued that the instant OA be dismissed with exemplary costs as no rights of the applicant stand violated. Moreover, the applicant cannot presume his eligibility on his own particularly in light of the fact that he is facing departmental proceedings in a number of cases and five major and minor penalty chargesheets have been issued to him. Notwithstanding, there would be others also who have the eligibility for the post of Statistician General of India. However, since the Government has acted within its rights and powers in granting extension to the respondent no.3, 21 none of the eligible persons can claim violation of their civil rights. Such a charge would have been attracted had the post been advertised and the extension would have been made surreptitiously.
17. The applicant in counter to the respondents stand has submitted that the post of Statistician General of India is a post to which even a private citizen is competent to apply and be appointed. Pointing towards the record of the respondent no.3, the applicant has submitted that he was a person who even failed to qualify for the Indian Administrative Service. Even in the last selection held in 2010, his ACRs were not perused and the meeting of the Selection Committee represented motion of formality. Here, the applicant has referred to the decision of the Hon'ble Supreme Court in Union Public Service Commission V/s. Girish Jayanti Lal Vaghela & Ors. [2006 (2) SCALE 115] relating to equality of opportunity. The applicant denied knowledge that the proposal had been approved by the Minister of State (independent charge) of the respondent- Ministry. He also denied strongly that he had made false complaint against one DK Sharma, Under Secretary and submitted that the clean chit given to the respondent no.3 was not within his knowledge and it could only be closed after having undergone an independent enquiry. 22
18. We have carefully gone through the pleadings of the rival parties and patiently heard the oral submissions made by their respective counsels. Considering the nature of the OA and the kind of legal battle that has been waged between the applicant and the respondent-Ministry, the matter has been considered by us with abundant caution and we find that the following issues germane to decide in this OA:-
1. What is the extent of executive powers of the Cabinet, as provided under the Constitution of India?
2. Whether the Notification dated 08.05.2006 has the strength of a rule or statute?
3. Whether the Prime Minister or the ACC has the powers to grant extension to an officer without the post being advertised?
4. Whether any of the civil rights of the applicant has been affected by the impugned action of the respondents in granting extension to the respondent no.3?
5. What relief, if any, could be granted to the applicant?
19. Insofar as the first of the issues is concerned, we take into account Article 53(1) of the Constitution which vests the 23 executive power of the Union in the President to be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Sub-clause (2) of Article 53 vests the supreme command of the Defence Forces in the President to be exercised in a manner regulated by law, while sub-clause (3) provides that no law enacted can be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority or prevent Parliament from conferring by law functions on authorities other than the President. For the sake of clarity, Article 53 of the Constitution is being extracted hereunder:-
"53. Executive power of the Union.
(1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
(2) Without prejudice to the generality of the foregoing provision, the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law.
(3) Nothing in this article shall-
(a) Be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority; or
(b) Prevent Parliament from conferring by law functions on authorities other than the President."
For the time being we are principally concerned with Article 53(1). The executive power means power which is concerned with execution of the Will of the State. The Hon'ble Supreme 24 Court has defined it to mean the residue of the government function after judicial and legislative foundations are taken away [State of MP V/s. Yashwant Trimbak, 1996 (2) SCC 305 and Samsher Singh V/s. State of Punjab, 1974 (2) SCC 831]. The term 'executive power' is essentially a constitutional concept like the legislation and judicial powers. While the judicial power is the administration of justice in accordance with law, the executive power is the administration of government in accordance with law. In Rai Sahib Ram Jawaya Kapur V/s. State of Punjab [AIR 1955 (SC) 549], the Hon'ble Supreme Court has defined the "executive powers"
as under:-
"12. It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.
The Indian Constitution has not indeed recognised the doctrine of separation if powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature.
It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of Article 154 of the Constitution but, as we have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws.
13. The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up. Our Constitution, though federal in its 25 structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State.
The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State."
20. The Hon'ble Supreme Court further held that while judicial power is administration of justice, the executive power is the administration of government in accordance with law. The difference between the departments undoubtedly is that the legislature makes, the executive executes and the judiciary construes the law [Jayantilal Amritlal Shoudhan V/s. F.N. Rana, AIR 1964 (SC) 648]. In a democratic State, the will of the State is expressed through the Legislature. The primary function of the Executive, thus, is not deliberation but the carrying out of administration of the laws enacted by the Legislature. However, in a modern State, the functions of the executive have become so complex that it cannot be said that the executive power simply consists of the power to executive the laws and the powers which have been defined under different headings - (a) Administrative power i.e. the execution of the laws and the administration of the government; (b) Diplomatic power i.e. the conduct of foreign affairs; (c) Military power i.e. the 26 organization of the armed forces and the conduct of war; (d) Legislative power i.e. the summoning, prorogation etc., of the Legislature, initiation of and assent to legislation and the like; and (e) Judicial power, i.e. the granting of pardons, reprieves, etc. to persons convicted to crime. However, by virtue of Article 74(1), these powers, whether the President exercise directly or through subordinate, can only be exercised on the aid and advice of the Council of Ministers [S.R. Bommai V/s. Union of India, 1994 (3) SCC 1]. Therefore, in exercise of its executive power, the Government may do any act provided it is not an act assigned by the Constitution to any other authority or body such as Legislature or Judiciary or the Public Service Commission e.g. matters specified in Article 3 [Rai Sahib Ram Jawaya Kapur V/s. State of Punjab (supra)]; it is not contrary to the provisions of any law; it does not encroach upon or otherwise infringe the legal rights of an individual; it does not involve payment of any money to any foreign power; and the powers required for carrying out a policy are not available from the existing law [Maganbhai V/s. Union of India, 1970 (3) SCC 400]; the Constitution says that any act may be done only by legislation, e.g., Article 19(2)-(6) [Samsher Vs. State of Punjab (supra)]. Since the executive powers include residue powers not specifically assigned to 27 some other body nor prohibited by some provisions of the Constitution, it cannot be exhaustively enumerated.
21. Article 73 provides as under:-
"73. Extent of executive power of the Union.
(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend-
(a) To the matters with respect to which Parliament has power to make laws; and
(b) To the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement: Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State 1[***] to matters with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution."
22. This Article vests executive power in respect of the administration of laws made by Parliament under its exclusive powers; the implementation of treaties and agreements binding on the Government of India; it has been made co-extensive with the legislative power of the Union Parliament [Association of Registration of Plates V/s. Union of India, 2005 (1) SCC 679]; the concurrent list shall be left ordinarily to the State, but the Centre may interfere in rare cases; it has to be exercised in a fair and reasonable manner and not in any manner whatsoever which meet the 28 requirement of law [Noble Resources Ltd. V/s. State of Orissa & Ors, 2016 (10) SCC 236]; the executive power also includes the power to lay down policies; transfer of government employees from one place to another [Rajendra Rao V/s. Union of India & Anr., 1993 (1) SCC 148].
23. We now take up the scope of the executive powers of the State as conferred upon the Council of Ministers under Article 74 of the Constitution, which provides as under:-
"74. Council of Ministers to aid and advise President,.- (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercises of his functions, act in accordance with such advice.
Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advises tendered after such reconsideration.
(2) The question if any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court."
This Article asserts the supremacy of the Cabinet in exercise of executive power as the President has been made subject to the aid and advice of the Council of Ministers. 42nd Amendment of the Constitution, which came into effect, has put to rest the controversies relating to contestation between the President and the Cabinet over the exercise of executive power leaving the Cabinet some sort of a master of the 29 Constitution. However, it is not that the 42nd amendment has vested any kind of arbitrary power onto the Cabinet. The Cabinet is also to exercise its jurisdiction in a reasonable and fair manner, free from arbitrariness and discrimination. The Hon'ble Supreme Court in Union of India V/s. Jyoti Prakash, 1971 (1) SCC 396] has listed three functions e.g. (a) the final determination of the policy to be submitted to Parliament; (b) the supreme control of the national executive in accordance with the policy prescribed by Parliament; and (c) the continuous co-ordination and delimitation of the interests of the several Departments. In India, the primary responsibility is being followed.
24. Article 75 of the Constitution provides as under:-
"75. Other provisions as to Ministers.
(1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.
[(1A) The total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed fifteen per cent, of the total number of members of the House of the People. (1B) A member of either House of Parliament belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to either House of Parliament before the expiry of such period, till the date on which he is declared elected, whichever is earlier.] (2) The Ministers shall hold office during the pleasure of the President.
(3) The Council of Ministers shall be collectively responsible to the House of the People.
30(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. (5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister.
(6) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determines, shall be as specified in the Second Schedule."
This Article reiterates the collective responsibility of the Cabinet to the Lok Sabha and the primacy of the Prime Minister over his Cabinet. The Cabinet has a number of Standing Committees to assist it in arriving at major decisions as a measure of time saving device. Some of the Parliament Committees include Appointments Committee of the Cabinet; Committee on Defence Affairs; Economic Affairs; Parliamentary Affairs; Political Affairs etc.etc. It is the ACC with which we are principally concerned.
25. Article 77 of the Constitution of India relates to conduct of business of the Government of India which provides as under:-
"77. "Conduct of business of the Government of India.--(1) All executive action of the Government of India shall be expressed to be taken in the name of the President.
(2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President.31
(3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business."
26. In the case of State of Uttar Pradesh versus Pradhan Sangh Kshetra Samiti [AIR 1995 (SC 1512], the Hon'ble Supreme Court had held that "it is not necessary for the President to be personally satisfied in exercising the executive power". Whenever the Constitution requires the "satisfaction" of the President for exercising any administrative power or functions, it is not his personal satisfaction, but in the constitutional sense, the satisfaction of his council of ministers on whose aid and advice President's opinion, satisfaction or decision is constitutionally secured when his ministers arrive at such opinion, satisfaction or decision. It has also to be seen that whether the validity of executive action depends upon prior legislation [H.C. Mehta versus Union of India (2004) 12 SCC 118] and where, the Constitution does not require legislation, and there is no contrary law in force on the subject matter, it is open to the Executives to issue administrative orders or instructions and even to confer rights and duties [Raghunandan versus State of Orissa (1975) 1 SCC 106].
27. It has been further held in Union of India versus Naveen Jindal [AIR 2004 (SC) 1559] that executive 32 instructions are not "law" under Article 13 though such instructions might have the force of law for some other purpose, as for example those instructions which are issued as supplement to legislative power under Article 77(1) of the Constitution. It has also been held in Chairman of L.I.C. of India versus Kalangi Samuel Prabakar [AIR 1997 (AP) 304] that the executive circulars, directions, instructions and regulations are issued under appropriate laws: and below statutory rules. They are not policy decisions, but means of implementation of predetermined policies. In H.C. Mehta's case (Supra) the Hon'ble Supreme Court further made it clear that a statutory notification cannot be notified by issue of a circular.
28. The aforesaid views have been further fortified by the Hon'ble Supreme Court in a series of cases - Nagendra versus Commissioner [AIR 1958 (SC) 398(413)];Sant Ram versus State of Rajasthan [AIR 1967 (SC) 1910] and Union of India versus Joseph [AIR 1973 (SC) 303], to mention a few.
28. The Hon'ble Supreme Court has held in SR Bommai vs Union of India (supra) that in a sense Articles 74 and 77 are complementary to each other, though they operate in different fields. Article 74(1) deals with acts of the President 33 done in exercise of his functions whereas Article 77 speaks of the executive action of the Government of India which is taken in the name of the Government of India. In so far as the executive action of the Government of India is concerned it has to be taken by the Minister/officer to whom the business is allocated by the rule of business made under clause (3) of Article 77 for more convenient transaction of the Government of India. All orders issued and the instrument executed relatable to the executive action of the Government of India have to be authenticated in the manner and the officer empowered in that behalf. The President does not come to the picture in so far as Article 77 is concerned. All business of the Government of India is transacted by the Minister or other officer empowered in that behalf, of course, in the name of the President. Orders are issued, instruments are executed and other acts done by various Ministries and officers, none of which reach the President or be placed before him for consideration. There is no occasion for such cases being for any aid or advice being considered to the President by the Council of Ministers. Though expressed in the name of the President they are the acts of the Government of India. In this regard we seek it necessary to extract the relevant part of the judgment in Shamsher Singh (supra):
34
"31. Further the rules of business and allocation of business among the Ministers are relatable to the provisions contained in Article 53 in the case of the President and Article 154 in the case of the Governor, that the executive power shall be exercised by the President or the Governor directly or through the officers subordinate. The provisions contained in Article 74 in the case of the President and Article 163 in the case of the Governor that there shall be a Council of Ministers to aid and advise the President or the Governor, as the case may be, are sources of the rules of business. These provisions are for the discharge of the executive powers and functions of the Government in the name of the President or the Governor. Where functions entrusted to a Minister are performed by an official employed in the Minister's Department there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. The official is merely the machinery for the discharge of the functions entrusted to a Minister (See Halsbury's Laws of England 4th Edn. Vol. I, paragraph 748 at p. 170 and Carltona Ltd. v. Works Commrs., (1943) 2 All ER 560 (CA)).
39. This Court in Bejoy Lakshmi Cotton Mills Ltd. v. State of West Bengal, reported in (1967) 2 SCR 406 = (AIR 1967 SC 1145) considered the validity of a notification signed by the Assistant Secretary in the Land and Revenue Department of the State Government. It was contended that the executive power of the State is vested in the Governor under Article 154(1) of the Constitution, and, therefore, the satisfaction of the Governor was contemplated under Sections 4 and 6 of the Land Development and Planning Act under which the notification would be made. Under the Rules of Business made by the Governor under Art.166 (3), the Governor allocated to the Minister certain matters. The Minister-in- charge issued a Standing Order specifying the matters which were required to be referred to him.
40. The Rules of Business in the Bejoy Lakshmi Cotton Mills case (1967) 2 SCR 406 = (AIR 1967 SC 1145) (supra) indicated that the business of the Government was to be transacted in various departments specified in the Schedules. Land and Land Revenue was allocated as the business of the Department of the Minister with that portfolio. The Minister-in-charge had power to make standing order regarding disposal of cases. This Court held that the decision of any Minister or officer under Rules of Business is a decision of the President or the Governor respectively. The Governor means, the Governor aided and advised by the Ministers. Neither Article 77 (3) nor Article 166 (3) provides for any delegation of power.
Although the executive power of the State is vested in the Governor actually it is carried on by Ministers under Rules of Business made under Article 166 (3). The allocation of business of the Government is the decision of the President or the Governor on the aid and advice of Ministers.
35
41. This Court in Jayantilal Amritlal Shodhan v. F. N. Rana, (1964) 5 SCR 294 = (AIR 1964 SC 648) considered the validity of a notification issued by the President under Article 258 (1) of the Constitution entrusting with the consent of the Government of Bombay to the Commissioners of Divisions in the State of Bombay the functions of the Central Government under the Land Acquisition Act in relation to the acquisition of land for the purposes of the Union within the Territorial jurisdiction of the Commissioners. The notification issued by the President was dated 24 July, 1959. The Commissioner of Baroda Division, State of Gujarat by notification published on 1 September, 1960, exercising functions under the notification issued by the President notified under Section 4(1) of the Land Acquisition Act that certain land belonging to the appellant was needed for a public purpose. On 1 May, 1960 under the Bombay Reorganisation Act, 1960 two States were carved out, viz., Maharashtra and Gujarat. The appellant contended that the notification issued by the President under Article 258 (1) was ineffective without the consent of the Government of the newly formed State of Gujarat."
29. The question of allocation of the business amongst the ministers arises out of the fact that the President being a constitutional head is to act on the advice of the Council of Ministers. It is physically impossible that each and every decision must be taken by the Council of Ministers personally. The Hon'ble Supreme Court has observed candidly in Shamsher Singh vs Union of India AIR 1974 SC 2192 that the wheels of the Government will come to a grinding halt if every decision is required to be taken by the Council of Ministers. Hence, in exercise of the powers conferred by clause (3) of article 77 of the Constitution, Government of India (Allocation of Business) Rules, 1961 for the allocation of the business of the Government of India had to be framed referred hereinafter as the Allocation of 36 Business Rules, 1961. Rule 2 provides that the business of the Government of India shall be transacted in the Ministries, Departments, Secretariats and Offices specified in the First Schedule to these rules (all of which are hereinafter referred to as "departments". For sake of greater clarity the Rules 2 & 3 of the Allocation of Business Rules, 1961 are extracted as below:
3. Distribution of Subjects -
1. The distribution of subjects among the departments shall be as specified in the Second Schedule to these Rules and shall include all attached and subordinate offices or other organisations including Public Sector Undertakings concerned with their subjects and Sub-rules (2), (3) and (4) of this Rule.
2. The compiling of the accounts of each Department shall stand allocated to that Department with effect from the date from which the President relieves, by order made under the first proviso to sub-section (1) of Section 10 of the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971; the Comptroller and Auditor General from the responsibility for compiling the accounts of that Department.
3. Where sanction for the prosecution of any person for any offence is required to be accorded-
1. If he is a Government servant, by the Department which is the Cadre Controlling authority for the service of which he is a member, and in any other case, by the Department in which he was working at the time of commission of the alleged offence;
2. If he is a public servant other than a Government servant, appointed by the Central Government, by the Department administratively concerned with the organisation in which he was working at the time of commission of the alleged offence; and
3. In any other case, by the Department which administers the Act under which the alleged offence is committed; Provided that where, for offences alleged to have been committed, sanction is required under more than one Act, it shall be competent for the Department which administers any of such Acts to accord sanction under all such Acts.
4. Notwithstanding anything contained in sub-rule (3), the President may, by general or special order, direct that in any case or class of cases, the sanction shall be by the Department of Personnel and Training."37
30. It is not possible for even the most hardworking of the Ministers to attend to every business of his Ministry personally nor is he expected to burden himself with the day-to-day administration, his primary function being to lay down policies and programmes of his Ministry while the Council of Ministers settles the major policies of the Government. Hence arises the need for making provisions for more convenient transaction of business with each Ministry. This is done by the Rules of Business by designating particular civil servants or officials within the Ministry who shall be competent to take decisions or dispose of business of the Government subject to the control of the Minister-in- charge or directions issued by him through the standing orders [Sanjeevi vs State of Madras [1970(1) SCC 443].
31. The respondents have relied upon the decision of the Hon'ble Supreme Court in G.J. Fernandez V/s. State of Mysore & Ors. [AIR 1967 (SC) 1753], wherein the challenge was against a certificate granted by the respondents to respondent no.3 on the ground that Mysore PWD Code had not been followed and there was unequal treatment among various tenderers. The Hon'ble Supreme Court dealing with the fact as to whether the Code constitutes statutory rules or not, found that the rules in question were administrative 38 instructions, and came to conclusion that since these instructions were administrative in nature, no claim for relief could lie.
32. In Ekta Shakti Foundation V/s. Govt. of NCT of Delhi [AIR 2006 (SC) 2609], the challenge was pertaining to the use of contractors as per the guidelines. The Hon'ble Supreme Court in this regard held that in absence of statutory force and guidelines, the same were not applicable and the policy decision must be left to the Government. Relevant portion of the judgement is extracted hereunder:-
"10. While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Ashif Hamid v. State of J. & K. (AIR 1989 SC 1899), Shri Sitaram Sugar Co. v. Union of India (AIR 1990 SC 1277). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere.
11. The correctness of the reasons which prompted the Government in decision making, taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation.
12. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the 39 Government so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government.
13. The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theatre Company v. City of Chicago (1912) 57 L Ed 730.
"The problems of Government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific. But even such criticism should not be hastily expressed. What is the best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. [See: State of Orissa and others v. Gopinath Dash and Others (2005) 13 SCC 495]."
33. We would like to conclude this issue by holding that the Cabinet is responsible to the Parliament and execute the legislation framed by it. It is the highest policy making body and in this it is assisted by the Cabinet Sub-Committees. The position of the Prime Minister is exalted inasmuch he effectively makes appointments to ministerial offices within or outside the Cabinet and may asked the Ministers to resign; controls the machinery of the Central government in allocation, creation, amalgamation and abolition of departments; he presides over Cabinet meetings and controls discussions; he is the leader of the House in the Parliament and, as such, he reacts more often with the Parliament other than others.
40
34. Insofar as the second of the issues is concerned, it is an admitted position that Notification dated 08.05.2006 has been made in pursuance to the Government of India Resolution dated 01.06.2005. For the sake of clarity, the stated object of the Notification is being extracted hereunder:-
"In pursuance of the Government of India Resolution No.A- 11011/1/2005-Ad.I dated 1st June, 2005 regarding setting up of the National Statistical Commission, the Competent Authority hereby approves the service conditions for Chairperson and Members of the National Statistical Commission and Chief Statistician of India."
35. In this regard, the Resolution of the Government dated 01.06.2005 states as follows:-
"The National Statistical Commission set up by the Government in January, 2000 under the chairmanship of Dr. C. Rangarajan to review the statistical system of the country recommended the establishment of a Statutory National Commission on Statistics to serve as a nodal and empowered body for all core statistical activities of the country, to evolve, monitor and enforce statistical priorities and standards and to ensure statistical co-ordination. The Rangarajan Commission also recommended that the Commission be set up initially through a Government order with a modicum of authority so as to evolve the legislation taking into account the ground realities and the emerging requirements when it starts to function. In line with the above recommendations, it has been decided to set up the Commission initially through a Government resolution. It is expected that the statutory Commission will be set up within a period of one year."
It, inter alia, recommended setting up of a National Statistical Commission (NSC) comprising of a part-time Chairperson who shall be an eminent Statistician or Social Scientist to be nominated by the Government of India; four part-time Members from the fields of economic statistics, 41 social and environment statistics, statistical operations in areas like censuses, surveys etc., and national accounts, statistical modelling or State Statistical System, Secretary, Planning Commission as ex officio Member and Secretary, Ministry of Statistics and Programme Implementation as ex official Member Secretary. The Chairman, Members and Secretary of the National Statistical Commission (Chief Statistician of India) are to be selected on the basis of recommendations of a Search Committee duly constituted by the respondent-Ministry. It is also provided that the Search Committee shall consist of -
(i) Deputy Chairman of the Planning Commission-Chairperson;
(ii) Deputy Governor of the Reserve Bank of India- Member; and
(iii) Two eminent persons who may be distinguished statisticians or social scientists with an intimate knowledge of the statistical system of the country - Members. It is further provided that "4. The Search Committee shall recommend names of three persons to the Government of India for selection as Chairperson and one of them would be nominated as the Chairperson. The Search Committee shall also recommend names of two persons from each of the categories in 2(b) and 2(d) eligible to be appointed as Members and Chief Statistician respectively and the Government of India shall nominate one member from each of the categories under 2(b) as Members of the Commission and appoint the Chief Statistician".
5. The tenure of the Chairperson and the Members shall be three years. The status of the Chairperson would be that of a Minister of State and the Members would be equivalent to Secretary to the Government of India."
36. It appears from the above that establishment of NSC has been set up on the basis of the report of the Dr. C 42 Rangarajan and on recommendation of the Search Committee in function, to review the statistical system of the country. The Search Committee also recommended that a Commission be set up initially through a government order which will later be codified under legislation taking into account the ground realities. However, the applicant has not submitted anywhere that this legislation has come about. It is true that provision 3 of the Resolution provides for selection of the Chairperson, Members and Secretary (Chief Statistician of India) of the NSC on the basis of the recommendations of Search Committee, which is to recommend names of three persons fulfilling requisite qualifications one of whom is to be nominated as the Chairperson. The power of nomination has been vested with the Government of India. These provisions also find expression in the Notification dated 08.05.2006. For the sake of convenience, we extract the relevant portion, which reads as under:-
"3.1 The Chairperson and Members of the National Statistical Commission will be appointed by the Government on the basis of the recommendations of a Search Committee duly constituted for the purpose. The Chairperson and Members of the Commission will be part-time Chairperson and Members respectively.
Xxx xxx xxx
3.3 There will be four part time members, one each from the
following fields having specialisation and experience in
(i) Economic statistics in such areas as agriculture, industry, infrastructure, trade or finance;43
(ii) Social and environment statistics in such areas as population, health, education, labour and employment or environment;
(iv) Statistical operations in such areas as censuses, surveys, statistical information system or information technology;
(v) National accounts, statistical modelling or state statistical systems."
Further, provision 4 provides for Appointment, Tenure and Service Conditions of the Chief Statistician of India, with which we are immediately concerned, and for the sake of clarity, the same is being extracted hereunder:-
"4.1 The Chief Statistician of India will be the Secretary of the Commission. He will also be the head of the National Statistical Organization and discharge the functions of the Secretary to the Government of India in the Department of Statistics;
4.2 The Search Committee shall recommend names of two persons for the post of Chief Statistician of India, out of which the Government of India shall appoint one person as the Chief Statistician of India. Persons with statistical and managerial experience in a large statistical organization shall be considered for appointment.
4.3 The tenure of the Chief Statistician of India will be five years or till he/she attains the age of sixty two years, whichever is earlier. The Chief Statistician of India will be eligible for reappointment. He/she should have attained the age of 52 years at the time of appointment.
4.4 The Chief Statistician of India will be eligible for the salary and allowance of a Secretary to the Government of India. He will also be eligible for Government accommodation, telephone, medical attendance and all other facilities as admissible to a Secretary to the Government of India.
4.5 Where any person being a retired government servant or retired servant of any other Institution or autonomous body and in receipt of a pension in respect of any previous service, is appointed as the Chief Statistician of India, the salary admissible to him under these rules shall be reduced by the amount of that pension and if he had received in lieu of a portion of the pension, the commuted value thereof, by the amount of that portion of the pension."44
These provisions are reproduction of the Resolution dated 01.06.2005. However, as conceived, both the Resolution dated 01.06.2005 and Notification dated 08.05.2006 remained merely the Resolutions of the Government not having acquired the force of law. Had an enactment of Parliament been made to that effect, the rules would have been framed under Article 309.
37. Now we look at the Business Rules framed under Article 77 (3) of the Constitution. A copy of such Rules notified on 14.01.1961, as amended from time to time, has been filed at page no.216 of the paper book. Rule 3 of the aforesaid Business Rules provide that all business allotted to a department shall be disposed of by, or under the general or special directions of the Minister-in-charge. For the sake of clarity, the above provision is extracted hereunder:-
"Disposal of Business by Ministers. Subject to the provision of these Rules in regard to consultation with other departments and submission of cases of the Prime Minister, the Cabinet and its Committees and the President, all business allotted to a department under the Government of India (Allocation of Business) Rules, 1961, shall be disposed of by, or under the general or special directions of the Minister-in-charge."
Rule 6 of the Rules ibid further provides as under:-
"Committees of the Cabinet :-
(1) There shall be Standing Committees of the Cabinet as set out in the First Schedule to these Rules with the functions specified therein. The Prime Minister may from time to time amend the Schedule by adding to or reducing the numbers of such Committees or by modifying the functions assigned to them;45
(2) Each Standing Committee shall consist of such Ministers as the Prime Minister may from time to time specify;
(3) Subject to the provisions of rule 7, each Standing Committee shall have the power to consider and take decisions on matters referred to it by order of the Minister concerned or by the Cabinet;
(4) Ad hoc Committees of Ministers including Group of Ministers may be appointed by the Cabinet, the Standing Committees of the Cabinet or by the Prime Minister for investigating and reporting to the Cabinet on such matters as may be specified, and if so authorized by the Cabinet, Standing Committees of the Cabinet or the Prime Minister, for taking decisions on such matters;
(5) To the extent, there is a commonality between the cases enumerated in the Second Schedule and the cases set out in the First Schedule, the Standing Committees of the Cabinet, shall be competent to take a final decision in the matter except in cases where the relevant entries in the First Schedule or the Second Schedule, preclude the Committees from taking such decisions;
(6) Any decision taken by a Standing or Ad hoc Committee may be reviewed by the Cabinet;
(7) No cases which concerns more than one Department shall be brought before a Standing or Ad hoc Committee of the Cabinet until all the Departments concerned have been consulted."
We also note from the First Schedule of the Business Rules at serial no.1 of which functions of the ACC have been listed. However, relevant functions of the ACC are being extracted hereunder:-
"(iii) to decide all cases of disagreement relating to appointments between the Department or Ministry concerned and the Union Public Service Commission;
(iv) to decide cases of extension of tenure, under the Central Staffing Scheme(s) or relevant central tenure norms, of officers belonging to the All India Services and other Group 'A' Services beyond the prescribed limits;
(vii) to decide cases relating to inter-cadre deputation or transfer of All India Services Officers;
(viii) to decide cases of extension of service beyond the age of superannuation under Fundamental Rule 56(d);46
(ix) to decide all cases of disagreement with the recommendations of the Search-cum-Selection Committee constituted in accordance with the statutory requirements or the relevant instructions of the Department of Personnel and Training in respect of officers of the rank or pay (pay band plus Grade Pay) equivalent to or higher than a Joint Secretary of the Central Government)."
38. It appears from the above that the ACC has the power to decide cases of extension under Central Staffing Scheme(s) or relevant Central tenure norms, of officers belonging to the All India Services and other Group 'A' Services beyond the prescribed limits. However, we agree with the arguments of the applicant that these would not be applicable to the case of the respondent no.3 as he neither belongs to All India Service nor to a Group 'A' Service nor is he covered by the Central Staffing Scheme or the tenure norms of the officers belonging to these Services. In this regard, FR 56(d) states as under:-
"56(d) No government servant shall be granted extension in service beyond the age of retirement of sixty years;
Provided that a Government servant dealing with budget work or working as a full-time member of a Committee which is to be wound up within a short period of time may be granted extension of service for a period not exceeding three months in public interest;
Provided further that a specialist in medical or scientific fields may be granted extension of service up to the age of sixty two years, if such extension is in public interest and the grounds for such extension are recorded in writing:
Provided also that an eminent scientist of international stature may be granted extension of service up to the age of 64 years, if such extension is in public interest and the grounds for such extension are recorded in writing;47
Provided also that notwithstanding anything contained in any rule, the Central Government may, if considered necessary in public interest so to do, give extension in service to a Cabinet Secretary in the Central Government for such period or periods as it may deem proper subject to the condition that his total term as such Cabinet Secretary does not exceed four years:
Provided also that the Central Government may, if it considers necessary in public interest so to do, give extension in service to the Defence Secretary, Home Secretary, Director, Intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation for such periods as it may deem proper on case-to-case basis, subject to the condition that the total term of the incumbents of the above posts, who are given such extension in service, does not exceed two years.
Provided also that notwithstanding anything contained in the fifth proviso, the Central Government may, if considers it necessary, in public interest, so to do, give an extension in service for a further period not exceeding three months beyond the said period of two years to the Home Secretary and the Defence Secretary.
Provided also that, the Central Government may, if considered necessary in public interest so to do, give extension of service to the Secretary, Department of Space and the Secretary, Department of Atomic Energy, for such period or periods as it may deem proper subject to a maximum age of 66 years.
Provided also that the Appropriate Authority shall have the right to terminate the extension of service before the expiry of such extension by giving a notice in writing of not less than three months in the case of a permanent or a quasi-permanent Government servant, on, of one month in the case of a temporary Government servant, or pay and allowances in lieu of such notice."
39. Here, we note that FR 56(d) first lays down the rule that no government servant shall be granted extension in service beyond the retirement age i.e. 60 years, but has proceeded to make certain exceptions. However, it is to be noted that the original appointment of the respondent no.3 was a 48 tenure appointment for a period of five years, which reads as under:-
"Reference File No.A-11011/1/2009-Ad.I(Pt.) dated 11.5.2010 of Ministry of Statistics & Programme Implementation.
2. The Appointments Committee of the Cabinet has approved the appointment of Prof. T.C.A. Anant, presently Professor, Department of Economics, Delhi School of Economics, as Chief Statistician of India (Secretary, National Statistical Commission) with concurrent charge as Secretary, Ministry of Statistics and Programme Implementation, for a period of 5 years from the date of assumption of charge of the post, or until further orders, whichever is earlier, vice Shri Pronab Sen, subject to the outcome of CAT/Court cases."
Hence, it is clear that FR 56(d) deals with extension of service, which is not the case here as we are dealing with the tenure appointment. However, it is in respect of special clause (xiv) enumerated in the functions of the ACC, which reads as under:-
"(xiv) to decide cases relating to employment or re-employment of any person, who has attained the age of superannuation, in any Department of the Government of India, any State-owned public corporation, company or enterprise, in a post, appointment to which requires approval of the Appointments Committee of the Cabinet."
40. Admittedly, the appointment of the respondent no.3 is tenure appointment and will get squarely covered under the clause 'any appointment which requires approval of the ACC'. We are further swayed by the fact that over and above these rules, the Prime Minister has been given overriding power to make departure from these rules under Rule 12 of the Business Rules, which reads thus:-
49
"12. Departure from Rules - The Prime Minister may, in any case or classes of cases permit or condone a departure from these rules, to the extent he deems necessary."
41. Though we do admit that there is a direct conflict between the Resolution dated 01.06.2005 and Notification dated 08.05.2006 on one side and the provision (xiv) of the First Schedule of Business Rules, but we do agree that the position would have been quite different had by virtue of Resolution dated 01.06.2005 a legislation been brought about and law was enacted and put in place then the Cabinet would have been bound to respect the provisions of law and overriding power under sub clause (xiv) ibid. For instance, Section 8 of the Administrative Tribunals Act, 1985 lays down -
"[8. Term of office.
(1) The Chairman shall hold office as such for a term of five years from the date on which he enters upon his office:
Provided that no Chairman shall hold office as such after he has attained the age of sixty-eight years.
(2) A Member shall hold office as such for a term of five years from the dale on which he enters upon his office extendable by one more term of five years:
Provided that no Member shall hold office as such after he has attained the age of sixty-five years.
(3) The conditions of service of Chairman and Members shall be the same as applicable to Judges of the High Court.]
1. Subs, by Act 1 of 2007, sec. 7, for section 8 (w.e.f. 19-2-2007).
Section 8, before substitution, stood as under:
"8. Term of office.--The Chairman, Vice-Chairman or other Member shall hold office as such for a term of five years from the date on which he enters upon his office, but shall be eligible for re-appointment for another term of five years:50
Provided that no Chairman, Vice-Chairman or other Member shall hold office as such after he has attained,--
(a) in the case of the Chairman or Vice-Chairman, the age of sixty-five years, and
(b) in the case of any other Member, the age of sixty-two years."
42. Here, the Cabinet could not have arrived at a decision to extend the term of the Chairman of the Tribunal beyond the age of 68 years as it has been provided in the Administrative Tribunals Act, 1985 itself that it would be violative of the law enacted by the Parliament, and the overriding power of the Cabinet succumbs to the will expressed by the Parliament in form of the Administrative Tribunals Act, 1985. This, however, is not the case here. Therefore, we are to hold that there is a clear conflict between the two sets of Resolutions dated 01.06.2005 and 08.05.2006 on one side and Business Rules, 1961 on the other, and we find that the provision (xiv) of the First Schedule and Rule 12 of the Business Rules will prevail over the other two. However, the Government does have the power to allow provision (xiv) and Rule 12 of the Business Rules to take effect.
43. Now we take up the issue no.3. During the course of oral submissions, the learned counsel for the respondents explained that the post under consideration i.e. Chief Statistician of India is a high profile post and it is not 51 necessary that it should be filled up by advertisement. The learned counsel relying upon the decision of the Hon'ble High Court of Delhi in WP(C) No.8124/2011 decided on 17.09.2013 (supra) submitted that it is a matter of common knowledge that for such a high profile post involving major responsibilities, it is customary that instead of making advertisement and inviting applications, offer is made to a person worth of the post directly. Therefore, when a tested and tried incumbent as that of the respondent no.3, who has served till the age of 60 years, is available then it lies in the logic that he should be proceeded with. Therefore, the learned counsel for the respondents argued that the Government have committed nothing wrong in granting extension of tenure to the respondent no.3 until he attains the age of 60 years i.e. the age of normal superannuation in the Government of India. In this regard, it is worthwhile to extract the relevant portion from the judgment of the Hon'ble High Court, referred to above, which reads as under:-
"15. The Institution of the Chief Statistician of India is a high office, tasked with and arduous and demanding goal: to reduce the problems faced by statistical agencies in the country in relation to collection of data and restoring public trust in the figures released by the Government.
16. For high offices and posts at the senior most executive level in organizations it may not only be difficult but even inadvisable to strictly codify eligibility norms, an essential requirement to otherwise hold a public post. The reason being that the holder of these posts is a bridge between the executive wing of the organization and the public trust in the organization. It is to facilitate this expected role that one is always in search of persons with high values, personality characteristics and integrity in addition to academic excellence and administrative experience in 52 the field in which the organization works. The community's expectations are no doubt high from the holder of these posts. Thus these expectations indicate the standard i.e. the qualifications to be met by the holder of the post and become the eligibility norm.
17. In the decision reported as (2011) 4 SCC 1 Centre for Public Interest Litigation & Anr. vs. UOI & Anr., pertaining to the appointment of the Central Vigilance Commissioner the Supreme Court has opined that institutional integrity has to be maintained on the touchstone of public interest.
18. Extending the jurisprudence a little further, one can say that for some category of post such as Vice-Chancellor of Universities, Central Vigilance Commissioner, Chief Statistician of India etc. since the community's expectations are so high and thus it may be difficult to lay down qualification and eligibility norms in any straitjacket formula, the principle of institutional integrity i.e. expectation of the society from the holder of the office would translate itself into a standard, based whereon qualification and eligibility of suitable candidates can be objectively measured.
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21. What emerges is that at times merely fulfilling the prescribed eligibility criteria may simply not be enough. In order to effectively guide the organisation/institution forward, a person so appointed at the helm should be one of vision and foresight. History evidences that the greatest leaders, generals, orators and administrators have always been those with the ability to do things differently. They were able to see things differently from others and make better and faster decisions and so were able to act accordingly, where others may have failed. In today's rat race, organisations/institutions also seek the same "X Factor".
Sometimes it is not the institution that makes the man, but the man who makes the institution. Such is the nature of effective leadership and guidance."
44. In Arun Kumar Agrawal V/s. Union of India & Ors. [2014 (2) SCC 609], the petitioner had sought issuance of a writ of quo warranto or any other direction against Mr. U.K. Sinha, Chairman of the Securities and Exchange Board of India (hereinafter referred to as 'SEBI') and his consequential removal from the post of Chairman on the ground that Mr. Sinha failed to fulfil one of the eligibility conditions and his appointment was the result of manipulation, mis- 53 representation, mala fide and suppression of vital material before the Search-cum-Selection Committee and ACC. The Hon'ble Supreme Court rejected the contention of the learned counsel for the petitioner that all posts necessarily had to undergo the process of Search Committee. The Hon'ble Supreme held -
"In our opinion, these observations are relevant as the procedure prescribed for the appointment of Chairman, SEBI is similar to the procedure which was prescribed for the selection on the post of Central Vigilance Commissioner. This apart, it has been emphasised that CVC is an integrity institution. The reasons for the aforesaid view are stated in paragraph 39, it has been observed as follows :-
"39. These provisions indicate that the office of the Central Vigilance Commissioner is not only given independence and insulation from external influences, it also indicates that such protections are given in order to enable the institution of the CVC to work in a free and fair environment. The prescribed form of oath under Section 5(3) requires the Central Vigilance Commissioner to uphold the sovereignty and integrity of the country and to perform his duties without fear or favour. All these provisions indicate that the CVC is an integrity institution. The HPC has, therefore, to take into consideration the values, independence and impartiality of the institution. The said Committee has to consider institutional competence. It has to take an informed decision keeping in mind the abovementioned vital aspects indicated by the purpose and policy of the 2003 Act."
The Hon'ble Supreme Court turned down the challenge of the petitioner against appointment of the respondent U.K. Sinha in that case.
45. We have also considered the decision of the Hon'ble Supreme Court in Supreme Court Advocates-on-record Association & Anr. V/s. Union of India with S.P. Gupta V/s. Union of India [1993 (4) SCC 441] where the challenge of the 54 petitioner was to the primacy of the opinion of the Chief Justice of India in regard to appointments of Judges to the Supreme Court and High Courts as well as in regard to transfer of High Court Judges and the matters including fixation of the Judge-strength in High Courts. The Hon'ble Supreme Court dealing with appointments held as under:-
"52. Our Constitution is a radiant and vibrant organism and under the banner of Sovereign, Socialist, Secular, Democratic Republic, steadily grows spreading the fragrance of its glorious objectives of securing to all citizens : Justice, Social Economic and Political.
53. For securing the above cherished objectives equally to all citizens irrespective of their religion, race, caste, sex, place of birth and the socio-economic chronic inequalities and disadvantages, the Constitution having very high expectations from the judiciary, has placed great and tremendous responsibility, assigned a very important role and conferred jurisdiction of the widest important role and conferred jurisdiction of the widest amplitude on the Supreme Court and High Courts, and for ensuring the principle of the 'Rule of Law' which in the words of Bhagwati, J. (as the learned Chief Justice then was) "runs through the entire fabric of the Constitution." To say differently, it is the cardinal principle of the Constitution that an independent judiciary is the most essential characteristic of a free society like ours.
54. Having regard to the importance of this concept the framers of our Constitution having before them the views of the federal Court and of the High Court have said in a memorandum:
"We have assumed that it is recognised on all hands that the independence and integrity of the judiciary in a democratic system of government is of the highest importance and. interest not only to the judges but to the citizens at large who may have to seek redress in the last resort in courts of law against any illegal acts or the high- handed exercise of power by the executive...........in making the following proposals and suggestions, the paramount importance of securing the fear less functioning of an independent and efficient judiciary has been steadily kept in view. Vide The Framing of India's Constitution Volume IB Page 196 by B. Shiva Rao.
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58. Bhagwati, J. (as the learned Chief Justice then was) who led on behalf of the minority observed in the same judgment i.e. Union of India v. Sankal Chand Himatlal Sheth (AIR 1977 SC 2328) (supra) observed (para 51):55
".................... the independence of judiciary is a fighting faith of our Constitution. Fearless justice is a cardinal creed of our founding document ............
Justice, as pointed out by this Court in Shamsher Singh v. State of Punjab (1975) 1 SCR 814: (AIR 1974 SC 2192) can become "fearless and free only if institutional immunity and autonomy are guaranteed."
46. This is how challenge to the primacy of opinion of the Chief Justice of India in appointment of judges was turned down. Hence, we answer this issue by holding that no wrong has been committed while giving extension to the respondent no.3 without the post in question having been advertised. This issue has already been partly answered while dealing with Issues No. 1 & 2.
47. In Chief Commercial Manager, South Central Railway, Secunderabad & Ors. V/s. G. Ratnam & Ors. [2007 (8) SCC 212], the respondents in that case were trapped in a vigilance raid and were compulsorily retired from service. Their OA against the order was allowed by the Tribunal on the ground that departmental traps were not led by the vigilance department of Railways as per the provisions of the Indian Railway Vigilance Manual, 1996. The High Court agreed with the order of the Tribunal but the Hon'ble Supreme Court held that-
"19. We have carefully gone through the contents of various chapters of the Vigilance Manual. Chapters II, III, VIII, IX and Chapter XIII deal with Railway Vigilance organization and its role, Central Vigilance Commission, Central Bureau of Investigation, Investigation of Complaints by Railway Vigilance, processing of vigilance cases in Railway Board, suspension and relevant aspects of Railway Servants (Discipline and Appeal) Rules, 1968 56 as relevant to vigilance work etc. Paragraphs 704 and 705, as noticed earlier, cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. Broadly speaking, the administrative rules, regulations and instructions, which have no statutory force, do not give rise to any legal right in favour of the aggrieved party and cannot be enforced in a court of law against the administration. The executive orders appropriately so-called do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued. Such an order would confer no legal and enforceable rights on the delinquent even if any of the directions is ignored, no right would lie. Their breach may expose the subordinate authorities to disciplinary or other appropriate action, but they cannot be said to be in the nature of statutory rules having the force of law, subject to the jurisdiction of certiorari.
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28. During the hearing of the intervention application which was allowed by this Court on 24.02.2004, Mr. Raj Kumar Gupta has brought to our notice that some disputes raised by the intervenors in regard to the same subject matter are pending before the Central Administrative Tribunal as well as before the High Court of Andhra Pradesh for adjudication. In view of the pendency of the matters before the Tribunal and the High Court, we do not wish to embark upon the merits of the claims made by the intervenors in their case pending before the Tribunal and the High Court, which shall be decided on their own merits. The intervention application is accordingly rejected without expressing any opinion on its merits.
48. In Central Electricity Supply Utility of Odissa versus Dhobei Sahoo & Ors. [2014 (1) SCC 161], the Hon'ble Supreme Court held as under:-
"14.2. A writ of quo warranto cannot be issued unless there is violation of statutory provisions and in the case at hand, in the absence of any statutory provision, and regard being had to the amendment of the Scheme made on 12.11.2010 wherein sub- clause (ix) has been incorporated in clause 4 enabling the Commission to allow the Chairman to discharge the functions and responsibilities of both the posts, the arrangement could not have been unsettled by the High Court.
21. From the aforesaid exposition of law it is clear as noon day that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or 57 correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority."
49. In regard to Issue no.4, the arguments have already been noted. It is the case of the applicant that had an advertisement been issued for the post of Chief Statistician- cum-Secretary, he, being qualified enough, would have been considered for the said post. The applicant, therefore, contends that by not issuing an advertisement for the post in question, he has been deprived of his right to be considered, which would amount to infringement of civil rights. No doubt, the applicant has a right to be considered subject to eligibility. It is not for this Tribunal to go into the factum of eligibility in the instant case that what would have been appropriate for the Search Committee had such a Committee been constituted. We have, however, taken a view that giving extension to the respondent no.3 in exercise of the powers conferred under provision (xiv) and Rule 12 of Business Rules to the respondent no.3 in absence of constitution of a Search Committee was not beyond the extent of powers of the ACC under the Business Rules. Having decided so, the right of consideration of the applicant would have come into play, had a Search Committee been constituted and an advertisement issued. However, since no Search Committee had been constituted, it is not for the 58 applicant to take a view to this effect. Moreover, we are not in a position to make any comment regarding the eligibility of the applicant. Therefore, we are to conclude this issue by stating that in exercise of powers of the Cabinet under Rule 12 and sub clause (xiv) of the Business Rules, and in light of the fact that neither a Search Committee has been constituted nor advertisement issued, the question of violation of civil rights of the applicant is without any basis.
50. Likewise in Citizens for Justice & Peace V/s. State of Gujarat & Ors. [2009 (11) SCC 213] challenge was to the appointment of one P.C. Pandey to the post of Director General of Police for having failed in his duties during the Gujarat carnage of 2002. However, the Hon'ble Supreme Court held as under:-
"7. An appointment of a government servant is the prerogative of the particular government, particularly, when it is a sensitive appointment of Director General of Police. We, under the doctrine of `judicial review', would not extend our hands to upset such an appointment, more particularly, in the factual panorama which is available today. We hold that the present Writ Petition has become redundant and we dispose it of as such. As for any disciplinary action against Shri Pandey, it is for the concerned government. We will not enter the fact finding exercise."
51. We have further taken note of the fact that the post in question is not a promotional post of Indian Statistical Service. We do agree that this being the condition that howsoever intelligent and eminent a person may consider himself, he cannot claim to be considered against the post as 59 a matter of right. Moreover, even in the Notification dated 08.05.2006, there is no mandatory force as the word 'shall' has been avoided and word 'will' has been used. Therefore, we are of the view that had the post in question been a promotional post of the ISS, the applicant would have been very much within his rights to agitate the issue.
52. In view of our findings in respect of Issue nos. 1 to 3, we have no option except to infer that no civil right of the applicant has been violated.
53. Insofar as the last of the issues is concerned, we would like to rely upon the decision in B. Srinivasa Reddy V/s. Karnataka Urban Water Supply & Drainage Board Employees' Assn. & Ors. [2006 (11) SCC 731(II) wherein the Hon'ble Supreme Court has laid down the ratio that the court cannot sit in judgement over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment. It is an admitted fact of the applicant that the respondent no.3 is eligible for re-employment. In this regard, we would like to extract para 51 from the judgment, which reads as under:-
"51. It is settled law by a catena of decisions that Court cannot sit in judgment over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses prescribed qualification and is otherwise eligible for appointment. This Court in R.K. Jain vs. Union of India, (1993) 4 SCC 119 was pleased to hold that the evaluation of the 60 comparative merits of the candidates would not be gone into a public interest litigation and only in a proceeding initiated by an aggrieved person, it may be open to be considered. It was also held that in service jurisprudence it is settled law that it is for the aggrieved person that is the non-appointee to assail the legality or correctness of the action and that third party has no locus standi to canvass the legality or correctness of the action. Further, it was declared that only public law declaration would be made at the behest of public spirited person coming before the Court as a petitioner having regard to the fact that the neither of respondent Nos. 1 and 2 were or could have been candidates for the post of Managing Director of the Board and the High Court could not have gone beyond the limits of Quo Warranto so very well delineated by a catena of decisions of this Court and applied the test which could not have been applied even in a certiorari proceedings brought before the Court by an aggrieved party who was a candidate for the post."
54. We would like to sum up here by stating that we have noted the executive power of the Cabinet and found that the President is bound by the aid and advice of the Cabinet and the same is expressed through the Business Rules; we have further found that the Resolution and Notification dated 01.06.2005 and 08.05.2006 are administrative orders lacking the force of law; we also find that when the above Resolution & Notification are in conflict with the provision
(xiv) of the First Schedule and Rule 12 of the Business Rules, the Business Rules shall prevail and the Prime Minister has the power to grant extension; we also find that it is not necessary that a Search Committee should be constituted for each post and an advertised issued, and the Government is within its competence to make offers on the basis of its knowledge particularly on the basis of great importance. We are also swayed by the consideration that no 61 civil rights of the applicant have been violated in absence of the advertisement. Therefore, we find no force of law in the instant OA being misconceived. At the same time, we would like to express that the applicant has contested the OA valiantly. It is also an admitted fact that the Tribunal is lacking in the power of PIL, which is vested in the Hon'ble Supreme Court and High Courts and, therefore, we must confine ourselves to the question of law and not mean dour all over the place.
55. Finding the instant OA being bereft of merits, we are constrained to dismiss the same. There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /AhujA/