Adviser to The Ministry of Defence & Ors Vs. S. Daniel & Ors  INSC
133 (10 April 1990)
S. Rangnathan, S.
1990 SCR (2) 440 1990 SCC Supl. 374 JT 1990 (2) 544 1990 SCALE (1)731
Civil Services (Classification, Control and Appeal) Rules, 1965: Rules 2(a),
9(1), Proviso, 12, 13 and Schedule Part V, Item No. XIV.
of Defence--Research Laboratories attached to Ministry--Civil posts--Class III
Employees--'Appointing Authority'--Authority to Institute Disciplinary proceed-
ings--Who is--Specified appointing authority, Scientific Adviser--Delegation of
power of appointment to Direc- tor--Appointments made by Director--Initiation
of discipli- nary proceedings by Director--Validity of.
2(a)--Only envisage the authority to whom the power of appointment has been
delegated and not both Delegator and Delegatee-Expression "Appointing
Authority"--Scope and meaning of-Whether means highest of authorities
mentioned in sub-clause (i) to (iv)--Expression "whichever is highest
authority"--whether governs only sub-clause (iv) of Rule 2(a) and not
other clauses--Purpose of Rule 2(a) explained.
9(1)--Proviso--Power of Appointment--Delegation of-Consequences of
Delegation--Both authorities viz. Delega- tor and Delegatee whether can be
treated as 'authority empowered to appoint.' Railway Servants (Discipline &
Appeal) Rules, 1968:
2(1)(a), 2(1)(c), 7 & 8/Railway Establishment Code.
Servants--Group C' and D employees--Appointing authority--Desciplinary
authority--Who is--Competent ap- pointing authority, General
Manager--Delegation of power of appointment to Zonal Officers/Divisional
Superintendents--Appointments made by Divisional Superin- tendents/Zonal
Officers--Initiation of Disciplinary Proceed- ings by Divisional
Law--Delegation of power of Appointment-- 441 Consequences of Delegation--Scope
of Delegate's power--Theory of imputation to the principal the acts of the
delegate--Whether applicable to Service Rules which make distinction between
power to appoint and power to take disciplinary proceedings--Power to take
disciplinary pro- ceedings--Whether adjunct to power of appointment.
Clauses Act, 1897.' Section 16--Applicability of--Whether confers power on the
factual appointing authori- ty to conduct disciplinary proceedings or impose
and Procedure: Special Leave Petition--Dismiss- al in limine--Supreme
Court--Whether precluded from consid- ering the issue in appeal on merits.
respondents were holding class III civil posts in the Research Laboratories
attached to the Ministry of De- fence. Under the Central Civil Services
(Classification, Control and Appeal) Rules, 1965, their 'appointing authori- ty'
was the Scientific Adviser. But the appointing authori- ty, the Scientific
Adviser, delegated his power of appoint- ment to the Director under Proviso to
Rule 9(1). Pursuant to the delegated power. the Director appointed the
the Director initiated disciplinary proceed- ings against the respondents.
for the respondents, in the connected appeals, belonging to Group C and D
employees of the Railways the competent authority, prescribed under the Railway
Establish- ment Code. to make appointments was the General Manager. But the
General Manager delegated his power of appointment to Zonal Officers/Divisional
Superintendents. Pursuant to the delegated power the Divisional Superintendents
appointed the respondents. Subsequently, disciplinary proceedings were
initiated against the respondents by the Divisional Superin- tendents.
respondents challenged the disciplinary proceedings before the Central
Administrative Tribunal contending that they were without jurisdiction since
the Director and the Divisional Superintending were not competent to initiate
the disciplinary proceedings. The Central Administrative Tribu- nal accepted
the plea and quashed the proceedings.
appeals to this Court it was contended on behalf of the respondents (i) that
the Director was not competent to initiate disciplinary proceedings against
them and only the Scientific Adviser, a higher authority, could do so; the
expression "whichever authority is the high- 442 est authority" in
Rule 2(a) governs only sub-clause (iv) of Rule and this expression seeks to
ensure that though the power to appoint may have been delegated under the
Proviso to Rule 9(1), such delegation does not extend to the exer- cise of
disciplinary powers; (ii) that appointments made by the Scientific Adviser
should be treated as .appointments made by the Scientific Adviser himself with
the result that a subordinate authority could not initiate disciplinary action
against the respondent.
in the connected railway cases, it was contended on behalf of the respondents
that notwithstanding the delegation of powers of appointment by the General Manag-
er, he, being the highest amongst the various appointing authorities, was alone
competent to institute disciplinary proceedings.
behalf of the appellant, Union of India, it was contended: (i) that on a proper
interpretation of the rules, the Director Zonal Officer/Divisional
Superintendents were competent to initiate the proceedings and (ii) that, irre-
spective of the provisions in the rules, a person who makes an appointment has
always an implied power of suspending or dismissing the appointee under section
16 of the General Clauses Act, 1897.
of the appeals, this Court,
1. The delegation of the power of appointment under the Proviso to rule 9(1)
does not necessarily deprive the disciplinary authority specified in the main
part of the rule from exercising the delegated power of appointment in any case
or class of cases. [459B] Godawari S. Parulekar v. State of Maharashtra,  3 S.C.R. 314; followed.
Rao v. State,  3 S.L.R. 768; Hals- bury's Laws of England, 4th Edn., pare
32; Wade on Adminis- trative Law, 6th Edn., P. 365, referred to.
Emperor v. Shibnath Banerjee, 72 I.A. 241; Huth v. Clarke,  25 Q.B.D.
proper and harmonious reading of rules 2(a) and rule 9 shows that sub-rule (a)
of rule 2 only envisages the authority to whom the power of appointment has
been delegat- ed under rule 9 and not both the delegator and the delega- tee.
Rule 2(a) directs the ascertainment of the authorities specified, in such of
clauses (i) to (iv) of the rule as may be applicable to a particular case and
designates the high- est of them as the 'appointing authority'. It envisages
only one authority as failing under each of these clauses and not more. An
inter-pretation of clause 443 (i) or (ii) as contemplating more than one
authority runs counter to the tenor of the rule. The said rule does not
contemplate any authority other than the one empowered to appoint a person
belonging to the post or grade which the concerned government employees holds.
In that sense the two parts of clause (i) and clause (ii) are not to be read
disjunctively to ascertain the authority empowered to make appointments (a) to
the service (b) to the grade and (c) to the post and consider the highest of
them. One has to re- strict oneself to the post or grade of the government serv-
ant concerned and invoke clause (i) or (ii) as the case may be. [459F-H; 460C-D]
Dharma Dey v. Union of India,  2 S.C.R. 554; Om Prakash Gupta v. Union of
India, A.I.R. 1975 S.C. 1265, explained and held inapplicable.
v. Union,  S.L.C. 82; Union v. Choud- hary,  2 S.L.R. 819; Choudhary v. Union,  All India Services Law Journal 1, cited.
Rule 2(a), not only do the words "whichever is the highest authority"
occur in the Rules separately from the four sub-clauses but the terms thereof
also clearly envisage a determination of one who, among several authori- ties,
is the highest. It, therefore, clearly means that the 'authorities' falling
under the definition in sub-clauses (i) to (iv) have to be ascertained and the
highest among them taken as the disciplinary authority for purposes of rule
appointing authority under the Schedule is a high-ranking authority and, in an organisation
like the Railways for instance, it will be virtually impossible for him to
consider each and every case of appointment of, or disciplinary action against,
all the Class III or Class IV employees in the organisation. It is indeed this realisation
that has rendered necessary a delegation of the power of appointment and cannot
be ignored, in the absence of compel- ling reasons, in the matter of disciplinary
the context of rules 2(a) and 12(2) which outline a contrast between the person
who is empowered to appoint and the person who actually appoints, it is
impossible to treat the Scientific Adviser/General Manager as the person who
appointed the respondents. [456H; 457A] Roop Chand v. State,  Supp. 1
S.C.R. 539, held inapplicable. 444 B. Daniel & Ors. v. Union of India, 
2 S.L.R. 477, referred to.
delegation of power does not enhance or improve the hierarchical status of the
delegate. [456G] Krishna Kumar v. Electrical Engineer
Central Railway & Ors.,  1 S.C.R. 50, referred to.
is doubtful how far, in the context of the service rules which make a clear
distinction between the power to appoint and the power to take disciplinary
proceedings, the latter can be said to be adjunct or ancillary to the former.
Daluram Pannalal Modi v. Commissioner,  2 S.C.R. 286, held inapplicable.
16 of the General Clauses Act, 1897 confers on the factual appointing
authority, in terms, only a power to suspend or dismiss and not a power to
conduct disciplinary proceedings or impose the various other kinds of penalties
envisaged in the rules. To say that the latter power also comes within S. 16, one
would need to make a further assump- tion that the power to suspend or dismiss
is a more compre- hensive power which would include the power to impose small- er
penalties too and this assumption is said to run counter to the rules which
deal with the two powers separately. The said section applies only "unless
a different intention appears". It applies only where a general power of
appoint- ment is conferred under an Act or Regulation. Here the Act or
Regulation i.e. the Rules envisage the power of appoint- ment conferred by them
on certain authorities being delegat- ed. The power conferred on the delegatees
is circumscribed by the instrument of such delegation and cannot be extended
beyond its ambit. [454B-E] Heckett Engineering Co. v. Workmen,  1 S.C.R.
693; Gafoor Mia and Ors. v. Director, DMRL,  2 CAT 277, referred to.
dismissal in limine of the Special Leave Petition cannot preclude the Tribunal
or Court from considering the issue in the appeals on merits.[452H; 453A]
APPELLATE JURISDICTION:_ Civil Appeal Nos. 12 10 to 12 17 of 1980 etc.
the Judgment and Order dated the 22nd April, 1980 of the 445 Andhra Pradesh
High Court in Writ Appeal Nos. 499, 500 to 505 of 1979 and 144 of 1980.
Dev Singh, G.B. Pai, K. Madhva Reddy, P.A. Choud- hary, Hemant Sharma, P. ParmeshWaran,
B. Parthasarthi, C.V. Subba Rao, Abbas Naqvi, R.P. Gupta, N.K. Nair, B. Kanta Rao,
Chandrashekhar Panda, A.T.M. Sampath, P.N. Ramalingam, R.D. Upadhyay, Ms.S. Janani
and A. Subba Rao for the appearing parties.
Judgment of the Court was delivered by RANGANATHAN, J- In the Special Leave
Petitions, we grant leave and proceed to dispose of all these appeals by a
common order. It may be noted that, except in C.A. 3044/89, the Union of India
is the appellant.
short common question arising in this large batch of appeals is: who is the
authority competent to initiate disciplinary proceedings against the Government
servants who are the parties here (hereinafter referred to, for conven- ience,
as 'the respondents')? There are two sets of appeals before us, one arising out
of proceedings in the Ministry of Defence, and the other in the Ministry of
Railways. The rules governing the former are the Central Civil Services
(Classification, Control & Appeal) Rules (hereinafter re- ferred to as
"the Civil Services rules") and those governing the latter are the
Railway Servants (Discipline and Appeal) Rules (hereinafter referred to as 'the
G.B. Pai, Anil Dev Singh, P.A. Choudhary, Madhava Reddy, B. Kanta Rao, A. Subba
Rao, A.T.M. Sampath, R.D. Upadhyay and others have argued the matters at length
and in great detail and we proceed to dispose of these appeals after
considering all the aspects urged before us.
shall take Daniel's case (C.A. Nos. 1210 to 1217 of 1,980) as illustrative of
the cases under the Civil Service Rules. Though the employees in these and
connected matters are Class III employees of Research Laboratories attached to
the Ministry of Defence (shortly referred to as DRDL, DMAL, DERL and DLRL),
they are serving in civil posts therein and, hence, governed by the Civil
Service Rules. They had been appointed by the Director of the Laboratory.
Disciplinary proceedings were initiated against them by the Director.
is, therefore, no possibility of any eventual viola- tion of the constitutional
prohibition in Article 311(1) against a Government servant being dis- 446
missed or removed from office by an authority subordinate to the appointing
authority. Still, the respondents contend that the Director is not competent to
initiate disciplinary proceedings against them and that it is only the
Scientific Adviser to the Government of India--a higher authority--that can do
so. This contention, based on the relevant provisions of the Civil Service
Rules, proceeds on the following lines.
12 and 13 of the Civil Service Rules deal with this topic and read as follows:
Disciplinary Authorities--(1)The President may impose any of the penalties
specified in rule 11 on any Government servant.
Without prejudice to the provisions of sub-rule (1), but subject to the
provisions of sub-rule (4), any of the penal- ties specified in rule 11 may be
imposed on-- (a) xx XX xx (b) a person appointed to a Central Civil post
included in the General Central Service, by the authority specified in this
behalf by a general or special order of the President or, where no such order
has been made, by the appointing authority or the authority specified in the
Schedule in this behalf.
Authority to institute proceedings-- (1) The President or any other authority
empowered by him by general or special order may-- (a) institute disciplinary
proceedings against any Govern- ment servant;
a disciplinary authority to institute discipli- nary proceedings against any
Government servant on whom that disciplinary authority is competent to impose
under I these rules any of the penalties specified in rule 11.
disciplinary authority competent under these rules to impose any of the
penalties specified in clauses (i) to (iv) of 447 rule 11 may institute
disciplinary proceedings against any Government servant for the imposition of
any of the penal- ties specified in clauses (v) to (ix) of rule 11 notwith-
standing that such disciplinary authority is not competent under these rules to
impose any of the latter penalties." In these cases, the disciplinary
proceedings have been instituted neither by the President nor by an authority
directed by him to do so, nor by any other authority empow- ered by him, by
general or special order, to do so. The disciplinary authority (D.A.) in the
present case, there- fore, has to be in terms of rule 12(2)(b), "the
appointing authority or the authority specified in the schedule in this
behalf". The "authority specified in the schedule in this
behalf", admittedly, is the Scientific Adviser to the Gov- ernment of India. The question next is whether the
Director is the "appointing authority" in the case of the respond- ents.
This matter is dealt within Rule 9(1) mad with its proviso which read thus:
Appointments to other Services and Posts-- (1) All appointments to the Central
Civil Services (other than the General Central Service) Class II, Class III and
Class IV, shall be made by authorities specified in this behalf in the
Schedule." "Provided that in respect of Class III and Class IV
civilian services, or civilian posts m the Defence services appoint- ments may
be made by officers empowered in this behalf by the aforesaid
authorities." The 'appointing authority' specified in the schedule
referred to in Rule 9(1), in the case of the respondents, is, again, the
Scientific Adviser to the Government of India.. But, by a notification made in
exercise of the power conferred by the proviso, he had authorised the Director
to make appointments to Class III and Class IV posts in his establishment and,
it is common ground, the Director had appointed the respondents in exercise of
that power. In other words, there is no dispute that the Director is the
"appointing authority" of the respondents not only in the sense that
he was empowered to appoint them under rule 9 but also in the sense that he
actually made these appointments.
it is said, he is not the 'appointing authori- ty' in the case of the
respondents within the meaning of rule 12(2)(b). In support of this argument,
attention is drawn to rule 2 which contains 448 the definitions of various
expressions for the purposes of the rules which will be applicable in the
absence of any- thing to the contrary in the relevant context. Rule 2(a) reads:
'appointing authority' in relation to a Government servant means-- (i) the
authority empowered to make appointments to the Service of which the Government
servant is for the time being a member or to the grade of the service in which
the Government servant is for the time being included, or (ii) the authority
empowered to make appointments to the posts which the Government servant for
the time being holds, or (iii) the authority which appointed the Government
servant to such Service, grade or post, as the case may be, or (iv) where the
Government servant having been a permanent member of any other Service or
having substantively held any other permanent post, has been in continuous
employment of the Government, the authority which appointed him to that Service
or to any grade in that Service or to that post.
authority is the highest authority." It will be noticed that this clause
refers to two classes of persons: (a) the authority empowered to make appointments
to the service, grade or post with which we are concerned--sub clauses (i) and
(ii)--and (b) the authority who actually appointed the Government servant to
the service, grade or post in question--sub clauses (iii) and (iv). Each of
these is sub-divided into two categories but we need not, for the purposes of
the present cases, bother about this sub-divi- sion. Stopping here, it will be
seen, as pointed out al- ready, that the Director falls under both the above catego-
ries as he is empowered to appoint the respondents by virtue of the power
delegated to him under the proviso to rule 9(1) and as he has also factually
appointed them. But, it is said, the Scientific Adviser to the Government of
India, notwithstanding his having delegated his power to the Direc- tor under
the proviso, also continues to be an authority empowered to appoint persons to
the posts in question under rule 9(1) read with the schedule. So under the 449
first category of persons indicated above as referred to in rule 2(a) there are
two authorities the Scientific Adviser and the Director and under the second
category we have the Director. And, here comes the crucial point on which the
respondents bank their entire case: the last few words of rule 2(a) make it
clear and specific that the expression 'appointing authority' means the highest
of the authorities mentioned in sub-clauses (i) to (iv). So, it is said, the
'appointing authority' for purposes of rule 12(2)(b), in the instant case, will
be the highest of the three authorities we have referred to above, viz. the
Scientific Adviser to the Government of India. In short, it is contended that,
by using the last few significant words in rule 2(a), the Civil Rules seek to
ensure that, though the power to appoint persons to a particular post, grade or
service may be dele- gated under the proviso to rule 9(1), such delegation
should not extend to the exercise of disciplinary powers. It is the clear
intention of the rule-makers, it is argued, that disciplinary powers should
continue to vest in the appoint- ing authority mentioned in the schedule read
with rule 9(1) and should not be allowed to be exercised by his delegate under
the proviso. The emphasis, it is said, is not on the person who has made, or is
empowered to make, the appoint- ment of the particular civil servant in
question; it is on the person Who makes, or is empowered to make, appointment
of persons generally to the post, grade or service to which the civil servant
in question belongs. It is, therefore, urged that though one Class III servants
in the laboratory may be appointed by the Director and another by the Scien- tific
Adviser (who can make such appointment despite the delegation), the
disciplinary authority for both and, indeed for all class III servants in the
Laboratory, must be the same and cannot be different. This interpretation of
rule 2(a), it is said, is not only quite plain on the language used but has
also received the approval of this Court in Dharam Der v. Union,  2 SCR
554. Further force is sought to be lent to the argument by pointing out that
the expression 'appointing authority' is used only in rules 2, 10, 12 and 24
of, and the schedule to, the Civil Service rules and that, to refuse to give
effect to the definition for purposes of rule 12 is to render the definition
clause virtually otiose. This plea was upheld by the Andhra Pradesh High Court
in Danial's case  2 SLR 477 and, following it, in the other cases before
us. A similar view has been taken in the Delhi High Court in Murishwar v.
Union,  Service Law Cases 82 in Union v. Tarlok Singh, cited there- in,
and by the Calcutta High Court in Union v. Choudhury,  2 SLR 819. But a
contrary view has been taken by the M.P. High Court in Chaudhury v. Union,
 All India Services Journal 1) and by the Andhra Pradesh High Court in
W.A. 793/83 and W.P. 2441/79.
The position in respect of ordnance factories which has to be considered in
some of the cases is identical, except for the nomenclatures of the respective
authorities, and does not need any separate discussion.
turn, next, to the railway cases, we are concerned with appointees to Group C
and Group D of the services, which correspond to class III and class IV of the
Civil Services. In respect of these persons, the relevant provi- sions are as
'Appointing Authority', in relation to railway servant, means:
the authority empowered to make appointments to the service of which the
railway servant is, for the time being, a member or to the grade of the Service
in which the railway servant is, for the time being, included, or (ii) the
authority empowered to make appointments to the post which the Railway servant,
for the time being holds, or (iii) the authority which appointed the Railway
servant to such Service, grade or post, as the case may be, or (iv) where the
Railway servant having been a permanent member of any other Service or having
substantively held any other permanent post, has been in continuous employment
under the Ministry of Railways, the authority which appoint- ed him to that
service or to any grade in that Service or to that post whichever authority is
'Disciplinary Authority' means-- (i) in relation to the imposition of a penalty
on a Railway Servant, the authority competent, under these rules, to impose on
him that penalty;
in relation to rule 9 and clauses (a) and (b) of sub- rule (1) of Rule 11 in
the case of any Gazetted Railway servant, an authority competent to impose any
of the penal- ties specified in rule 6.
(iii) in relation to rule 9 in the case of any non-gazetted Railway servant, an
authority competent to impose any of the major penalties specified in rule 6;
in relation to clauses (a) and (b) of sub-rule (1) of Rule 11, in the case of a
non-gazetted Railway servant, an authority competent to impose any of the
penalties specified in Rule 6".
Disciplinary authorities-- (1) The President may impose any of the penalties
specified in Rule 6 on any Railway Servant.
Without prejudice to the provisions of sub-rule (1), any of the penalties
specified in Rule 6 may be imposed on a Railway servant by the authorities as
specified in Schedules I, II and III.
The disciplinary authority in the cases of a Railway Servant officiating in a
higher post, shall be determined with reference to the officiating post held by
him at the time of taking action".
Authority to institute proceeding.- (1) The President, or any other
authority-empowered by him, by general or special order, may-- (a) institute
disciplinary proceedings against any Railway servant;
a disciplinary authority to institute discipli- nary proceedings against any
Railway servant on whom that disciplinary proceedings against any Railway
servant on whom that disciplinary authority is competent to impose, under these
rules, any of the penalties specified in rule 6.
disciplinary authority competent under these rules to impose any of the
penalties specified in clauses (i) to (iv) of Rule 6 may, subject to the
provisions of clause (c) of subrule (1) of rule 2, institute disciplinary
proceedings against any Railway servant for imposition of any of the penalties
452 specified in clauses (v) to (ix) of rule 6, notwithstanding that such
disciplinary authority is not competent under these rules, to impose any of the
II referred to in rule 7(2) lays down that an order of compulsory retirement,
removal or dismissal from service may be ordered, in the case of a Group C or
Group D Railway servant by the appointing authority or authority equivalent in
rank or any higher authority and Note 2 to the Schedule mentions that such an
authority may also impose any tower penalty. Under rule 275 of the Railway
Establishment Code (Vol. I), which deals with the recruitment, training and
promotion of Group C and Group D railway servants, the authority competent to
make a first appointment is the General Manager or any lower authority to whom
he may dele- gate the power. The General Manager of each Railway has delegated
his powers under several heads. One set of the Schedule of Delegation of Powers
by the General Manager of the Southern Railway in Establishment Matters has
been set out in some detail in the order of the Central Administra- tive
Tribunal (CAT) in the case of Gafoor Mia and Ors. v. Director, DMRL,  2
CAT 277, (which is one of the orders in appeal before us.) It is neither useful
nor neces- sary to repeat them here in extenso. Here also, the argument is
that, notwithstanding the delegation of powers of ap- pointment of Group C and
Group D employees to various other zonal officers, the General Manager has. not
divested him- self of the power to make such appointments and continues to be
the 'appointing authority'. Being the highest among the various appointing
authorities, he alone stands vested with the power to institute disciplinary
proceedings and impose penalties. It is, therefore, submitted that the
disciplinary proceedings, in the cases under this batch, initiated by the
Divisional Superintendent and like officers were without jurisdiction and were
rightly quashed by the CAT in Gaffoor Mia's case, already referred to, and the
decisions in the other matters before us following the said decision.
in crux, is the argument for the respondents.
dealing with this argument, it will perhaps be help- ful to steer clear of
certain minor arguments addressed by either side:
Sri Kanta Rao submitted that the same view as in Gafoor Mia, had been taken by
the C.A.T. in Supriya Roy's, case and that this Court has already, on 21.9.88,
dismissed S.L.P. Nos. 9956-57 of 1988 filed against the said order.
appears to be correct but the dismissal in limine of that S.L.P. 453 cannot
preclude us from considering the issue in these appeals on merits. It is seen
that, in C.A. 3963/88, an application has been filed for revocation, on this
ground, of the leave granted by this Court. We dismiss this applica- tion.
Much store is set, on behalf of the respondents, by the decision of this Court
in Dharam Dev's case '(supra). It is no doubt true that the decision refers to
the provisions of Rule 2(a) and applies the same to the case before it. But the
context in which the case arose was a very simple and straight forward one. In
that case, the employee in question had in fact been appointed by the
Comptroller and Auditor General of India (CAG) and he was the highest authority
in regard to the service in question. All that the decision pointed out was
that, in view of this and of Article 311, no authority lower in rank to the CAG
was competent to take action against the appellant before the Court. The Court
had no occasion to consider the type of controversy that has arisen here and
did not consider either the interaction of sub-clauses (i) and (iii) of clause
(a) of rule 2 or the situation as to whether there could be more than one
author- ity empowered to appoint persons to a post, grade or service within the
meaning of sub-clause (i) or (ii) of clause (a) itself. This decision is
therefore not helpful--and certain- ly not conclusive--to solve the issue
arising before us. The same is the position in regard to the decision of this
Court in Om Prakash Gupta v. Union, A.I.R.
1975 S.C. 1265 which seems to have been relied on, for the Union, before the CAT.
case, the appellant was a temporary Government servant not holding a specified
post. All that this Court pointed out was that, if the definition in rule 2(a)
was not applicable to such a person, the word 'appointing authori- ty',
understood in its plain and natural meaning would mean the authority which
appointed him--viz. the Director General of the Geological Survey of India. If,
on the other hand, the terms of rule 2(a) were applicable--the person empowered
to appoint the appellant being one Sri Moghe and the person who appointed him
being the Director General--the latter, who was the higher authority, would be
the 'appointing authority'. This, again, was an instance of a simple and direct
application of the rule, involving no complications as here and cannot be
treated as deciding the issue before us.
behalf of the appellant, the Union of India, reliance is placed on S. 16 of the
General Clauses Act, 1897. It is argued 454 that, irrespective of the
provisions in the rules, a person who makes an appointment has always an
implied power of suspending or dismissing him--vide: Heckett Engineering Co. v.
Workmen,  1 S.C.R. 693. There are three difficul- ties in accepting this
argument. In the first place, even if the argument is valid, it confers on the
factual appointing authority, in terms, only a power to suspend or dismiss and
not a power to conduct disciplinary proceedings or impose the various other
kinds of penalties envisaged in the rules.
that the latter power also comes within S. 16, one would need to make a further
assumption that the power to suspend or dismiss is a more comprehensive power
which would include the power to impose smaller penalties too and this
assumption is said to run counter to the rules which deal with the two powers
separately. Secondly, S. 16 app. lies only "unless a different intention
appears". If the con- struction placed on the Civil Service Rules and the
Railway rules on behalf of the respondents is correct, then the rules express a
different intention and it would therefore not be possible to rest on the
general principle enunciated by S. 16. The contention has, therefore, to be
examined independently and S. 16 cannot be an answer to it. Thirdly, S. 16
applies only where a general power of appointment is conferred under an Act or
Regulation. Here the Act or Regu- lation (i.e. the Rules) envisage the power of
appointment conferred by them on certain authorities being delegated.
power conferred on the delegatees is circumscribed by the instrument of such
delegation and cannot be extended beyond its ambit, as observed by the C.A.T.
in Gafoor Mia's case (supra). S. 16, therefore, does not come to the rescue of
argument was raised at the earlier stages, that the words "whichever is
the highest authority" governs only subclause (iv) of rule 2(a) of the
Civil Service Rules and not the other sub-clauses. This contention cannot bear
a moment's scrutiny both because the above words occur in the Rules separately
from the four sub-clause but also because the terms thereof clearly envisage a
determination of one who, among several authorities, is the highest. It, there-
fore, clearly means that the 'authorities' falling under the definitions in
sub-clauses (i) to (iv) have to be ascer- tained and the highest among them
taken as the disciplinary authority for purposes of rule 12(2)(b).
above discussion narrows down the controversy before us to a very short issue:
Can it be said, where the appoint- ing authority under 455 rule 9(1) has delegated
his powers of appointment under the proviso, that both the authorities should
be treated as the "authority empowered to appoint" persons to the
post, grade or service or does this expression get restricted only to the
latter, i.e. the delegatee authority? If both fail under the above description
within the meaning of sub-clause (i), the respondent's plea that the definition
in rule 2(a) will mark out only the Scientific Adviser/General Manager would be
correct. On the other hand, if the second of the above interpretation is
correct, the appellant's stand will have to be upheld.
counsel for the respondents vehemently contend that the authority specified
under the schedule read with rule 9(1) does not lose his authority to appoint
merely by the act of delegating his powers to a subordinate authority.
delegation no doubt empowers the subordinate authority to appoint but does not
take away the power of appointment conferred on the authority specified in the
schedule read with rule 9(1).
dealing with the above contention, we may make reference to certain decisions
cited by counsel on the consequences of such delegation. In Roop Chand v.
State,  Suppl. 1 SCR 539 the petitioner had filed an appeal from the
order of the Settlement Officer to the State Gov- ernment under S. 21(4) of the
relevant Act. But the State Government, having delegated--under S. 41(1) of the
Act--the right to hear and dispose of the appeals made to it to the Assistant
Director (Consolidation), the petitioner's appeal was disposed of by the said
Officer who allowed the same.
Respondent thereupon sought to invoke a power conferred on the State Government
under S. 42 of the Act to revise the orders passed by the authorities under the
Act. On a writ petition filed before it the Supreme Court quashed the revisional
order passed by the State Government on the simple logic that the order passed
under section 41(1) read with section 21(4) was an order of the State
Government (though, in fact, passed by a delegate) and could not be
"revised" by the State Government itself under S. 42. The Andhra
Pradesh High Court speaking through P.A. Choudary, J.
Daniel's case (since reported in 1988 2 S.L.R. 477) thought that the principle
of the case was of no avail to the Union of India which appears to have
contended, on the strength thereof, that "though the disciplinary action
was initiated by the Director, it must be treated as having been taken by the
Scientific Adviser himself because the action of the Director, being that of a
delegate, must be regarded in law as that of the principal himself". The
learned Judge repelled the argument, observing:
"The ratio of the aforesaid case is that the action of the delegate can be
treated as that of the princi- pal himself. Applying the ratio of the above
case to the facts of our case, it can be said at the most that the orders of
appointments made by the Director, by reason of the statutory delegation made
by the Scientific Adviser under Rule 9(1), are those of the Scientific Adviser
him- self, on the basic that the exercise, of the power delegated to an
authority may be treated as an exercise of the power by the principal himself.
the principle, we cannot agree with the contention of the learned Counsel that
the Director's exer- cise of the disciplinary power against the petitioners
should be treated as an exercise of disciplinary authority by the Scientific
Adviser himself. The reason is too simple.
the statute deals, throughout its provisions, with the disciplinary power as a
different and separate power from the power to appoint. Secondly, the
disciplinary power is never delegated by the Scientific Adviser to the Director
either under Rule 9(1) or any other rule of the CCA Rules.
follows, therefore, that the theory of imputation to the principal the acts of
the delegate can have no application to such a situation as the one before us.
We, therefore, find that the Roop Chand's case is of no avail to the re- spondents."
Though Sri Choudhary, who appeared before us for the re- spondents seemed to
have second thoughts about this, we are of opinion that the observations
extracted above set out the correct position and that the Roop Chand decision
is of no help. An attempt has been made before us to invoke the Roop Chand
principle in a different way to support the case of the employees and argue
that their appointments made by the Director should be treated as appointments
made by the Scientific Adviser himself and that, therefore, no discipli- nary
action can be initiated against them by any one other than the Scientific
Adviser himself. We do not think that this argument can be accepted. As
observed in Kishore Ku- mar's case  1 S.C.R. 50 a delegation of power
does not enhance or improve the hierarchical status of the delegate.
rule in Roop Chand as to the nature and character of the power exercised by a
delegate was enunciated in a particular context. It cannot be treated as a
general principle ap- plicable to all situations. In particular, in the context
of rules 2(a) and 12(2) with which we are concerned and which outline a
contrast between the person who is empowered to 457 appoint and the person who
actually appoints, it is impossi- ble to treat the Scientific Adviser/General
Manager as the person who appointed the respondents.
has not been made to Daluram Pannalal Modi v. Commissioner,  2 SCR 286.
This was a case as to the interpretation of the scope of a delegate's power. S.
19 of the Madhya Pradesh Sales Tax Act, 1958, empowers the Commis- sioner, if
he is satisfied that any sale or purchase of goods, has escaped assessment, to
make a reassessment. S. 30 of the Act, however, enabled the Commissioner to
"delegate any of his powers and duties under the Act" and the Commis-
sioner, exercising this power, delegated to the Assistant Commissioner his
powers and duties to make an assessment or reassessment and to exercise all
other powers under Sections 18, 19 and 20. An assessee challenged a
reassessment notice issued by an Assistant Commissioner contending that what
had been delegated was only the power of reassessment but not the duty of being
satisfied that there was an escapement which, according to the assessee, still
remained with the Commissioner. This argument was repelled and it was held that
the requirement of being satisfied was an adjunct of the power to initiate
reassessment proceedings. That princi- ple cannot apply here as it is doubtful
how far, in the context of the service rules which make a clear distinction
between the power to appoint and the power to take discipli- nary proceedings,
the latter can be said to be adjunct or ancillary to the former.
leads us to the question whether the appointing authority specified in the
schedule can exercise his power of appointment to a post, cadre or service even
after he has delegated that power to a subordinate authority under the proviso.
An answer to this question in the affirmative is contended for on the strength
of certain authorities which may now be considered. In Godawari S. Parulekar v.
State of Maharashtra,  3 SCR 3 14 the appellant had been de- tained by an
order passed by the State Government under rule 30 of the Defence of India
Rules. 1t was contended on behalf of the appellant, inter alia, that the State
Government had earlier issued a notification delegating its powers under rule
30 to the District Magistrate and was so not competent to make the order of
detention in question. Reliance was placed for this argument on the
observations of the Judicial Committee in King Emperor v. Shibnath Banerjee, 72
observations were distinguished and the above conten- tion was repelled. It was
held that by issuing the notifica- tion in question, the State Government had
not denuded itself of the power to act under r. 30 (vide Willis J. in 458 Huth
v. Clarke,  25 QBD 39 1. Learned counsel also referred to the decision of
the Karnataka High Court in Ramachandra Rao v. State,  3 SLR 768. This
case does hold that a power which is delegated can be exercised both by the delegator
and the delegatee, though the Supreme Court decisions cited therein as deciding
this issue do not seem to help. Halsbury 4th Edn., para 32, citing Huth v.
Clarke, (supra), summarises the English Law on the subject thus:
general, a delegation of power does not imply parting with authority. The
delegating body will retain not only the power to revoke the grant but also
power to act concurrently on matters within the area of delegated authority
except in so far as it may already have become bound by an act of its
the following passage from Wade on Administrative Law (Sixth Edition) at p. 365
would seem to indicate that the position is not quite clear and may need
detailed con- sideration in an appropriate case:
statutory power to delegate will normally include a power to revoke the
delegation when desired. While the delegation subsists it may be arguable
whether the delegating authority is denuded of its power or is able to exercise
it concur- rently with the delegate. This question arose where under statutory
authority the executive committee of a county council delegated to a
sub-committee its powers to make regulations for the control of rabies; but
before the sub- committee had done anything the executive committee, without
revoking the delegation, itself issued regulations for the muzzling of dogs.
These regulations were upheld, but on inconsistent grounds, one judge holding
that the executive committee had resumed its power and the other that it had
never parted with them, and that 'the word "delegate" means little
more than an agent. In a later case the latter view prevailed, on the ground
that 'one cannot divest oneself of one's statutory duties'. But the contrary
was held by the Court of Appeal where a minister had formally delegated to
local authorities his power to requisition houses. By doing this he had for the
time being divested himself of his powers, so that an invalid requisition by
the local authori- ty could not be cured by their acting in his name; and the
court rejected the contention that 459 delegation was a form of agency. The
Local Government Act 1972 expressly preserves the powers of a local authority
concurrently with those delegated to its commits, etc." We do not think it
is necessary to go into this question. In view of the decision in Godawari
(supra), we shall accept the general proposition that the delegation of the
power of appointment under the proviso to rule 9(1) does not neces- sarily
deprive the disciplinary authority specified in the main part of the rule from
exercising the delegated power of appointment in any case or class of cases.
the basic question that remains is, whether, in the context of rule 2(a) read
with rule 9(1), the reference to the authority empowered to make the
appointment is to the authority mentioned in the proviso to rule 9 or to both
the authorities falling under the main part 01' rule 9(1) as well as the
proviso. The sheet anchor of the respondent's case is that the expression
'appointing authority' is used in very few of the rules. One of them is rule 12
and there can, therefore, be no valid reason to refuse to apply the definition
clause in the context of those rules. It is urged that, by holding the person
specified in the schedule also to be the 'appointing authority' as defined in
rule 2(a), none of the other rules relating to appeal, revision etc.
redundant as urged on behalf of the appellants. We agree with the respondents
that the expression 'appointing authority' in rule 12 should have the meaning
attributed to it in rule 2(a). But what is the real and true interpreta- tion
of Rule 2(a)? What does that sub-rule talk of when it refers to a 'person
empowered to make the appointment' in question? These words clearly constitute
a reference to rule
Does rule 2(a) refer then to the authority empowered by the schedule to make
the appointments or the authority to whom he has delegated that power or both?
We think, on a proper and harmonious reading of rule 2(a) and rule 9, that sub-rule
(a) of rule 2 only envisages the authority to whom the power of appointment has
been delegated under rule 9 and not both the delegator and the delegate. We
have come to this conclusion for a number of reasons. In the first place, it is
clear on the plain language of rule 2(a), that it directs the ascertainment of
the authorities specified, in such of clauses (i) to (iv) of the rule as may be
applicable to a particular case and designates the highest of them as the
'appointing authority'. It envisages only one authority as falling under each
of these clauses and not more. The respondent's contention which involves
interpretation of clause (i) or (ii) as contemplating more than one authority
runs counter to the tenor of the rule. Secondly, the strict- ly literal meaning
of rule 2(a) insisted upon by the re- spondents 460 would render the rules
unworkable. For instance, under clause (i), one of the authorities to be
considered is the 'authority empowered to make appointments to the service of
which the government servant is for the time being a mem- ber'. The respondents
belong to one of the Central Civil Services. Though they belong to class III or
class IV, there are class and class II officers as well therein. Rule 8
declares that only the President can make appointments to Class I in the
service. If each of the clauses is read as envisaging a plurality of
authorities as contended for and if clause (i) is literally interpreted, it
will also include the President who is one of the authorities empowered to make
appointments to the service of which the concerned employees is a member. This
will render the entire gamut of the rules unworkable. On this interpretation,
the President will be the only appointing authority under rule 2(a) in all
cases, being the highest of the authorities envisaged there- in. This cannot
clearly be correct. Rule 2(a) does not contemplate any authority other than the
one empowered to appoint a person belonging to the post or grade which the
concerned government employee holds. In that sense the two parts of clause (i)
and clause (ii) are not to be read distributively to ascertain the authority
empowered to make appointments (a) to the service (b) to the grade and (c) to
the post and consider the highest of them. One has to re- strict oneself to the
post or grade of the government serv- ant concerned and invoke clause (i) or
(ii) as the case may be. Thirdly, the whole purpose and intent of rule 2(a) is
to provide that appointing authority means either the de facto or the de jure
appointing authority. It will be appreciated that, generally speaking, only the
de jure authority can make the appointment but, occasionally, a superior
authority or even a subordinate authority (with his consent) could have made
the appointment. Again it is possible that the authority empowered to make the
appointment at the time when relevant proceedings in contemplation may be
higher or lower in rank to the authority which was empowered to make the
appointment or which made the appointment at a different point of time.
whole intent or purpose of the definition to safeguard against an infringement
of Art. 311(1) and ensure that a person can be dealt with only by either a
person competent to appoint persons of his class or the person who appointed
him, whoever happens to be higher in rank. That rule is not infringed by the
interpretation placed by the appellants. The provisions of Schedule II in the
case of the Railways which specify the appointing au- thority or an authority
of equivalent rank or any higher authority as the disciplinary authority are
also consistent with this interpretation. Fourthly, the interpretation sought
to be placed by the respondents on rule 2(a) is artificial and strained. It
amounts to saying that a person who is 461 empowered to appoint a government
servant (as the Director, DERL, for example, undoubtedly is) and who has also
appoint- ed him will not be the appointing authority, because, theo- retically,
even a more superior authority could have ap- pointed him despite having delegated
his authority in this regard to a subordinate. On the contrary, the
interpretation urged by the Union will not
adversely affect the few employ- ees, if any, who may be appointed by a
superior scheduled authority despite delegation of such power to a subordinate
authority. For, in such a case, the superior authority would be the person who
has factually appointed such an employee and he will clearly be the 'appointing
authority' by virtue of rule 2(a). Lastly, the interpretation sought for by the
Union is consistent with practical
consideration. The ap- pointing authority under the Schedule is a high-ranking
authority and, in an organisation like the Railways for instance, it will be
virtually impossible for him to consid- er each and every case of appointment
of, or disciplinary action against all the Class III or Class IV employees in
the organisation. It is indeed this realisation that has rendered necessary
delegation of the power of appointment and cannot be ignored, in the absence of
compelling reasons, in the matter of disciplinary powers.
behalf of the respondents, it is contended that the intention of the rules is
to restrict powers of discipline from being exercised by all appointing
authorities. Central- isation, it is urged, is the object. This contention is
not borne out by the table of innumerable disciplinary authori- ties set out in
the schedule, not to speak of those on whom factual or special powers have been
conferred by the Presi- dent (as was indeed done in many of these very cases later).
against this, Sri Pai, for the appellants pointed out that if one has regard to
the strength of the railway staff or the other class III or IV staff employed
in various civil services, the interpretation urged on behalf of the respond- ents
would cast an impossible burden of work on the authori- ties specified in the
schedule to whom alone the respondents seek to confine the power to take
is force in this contention.
been brought to our notice that notifications have since been issued (for
example on 29th August 1979 in the case of the DERL and 2.1.87 in the case of
Ordnance factories) by the President under rule 12 empowering certain
authorities to exercise disciplinary powers. We need hardly say that any disciplinary
proceedings initiated by such authorities from the date when such notifications
came into effect will be perfectly valid. It has also been brought to our
notice that, in some cases, (for example, C.A. Nos. 1443, 1444 and 4340/88),
the CAT has 462 also gone into the merits of the cases and set aside the
penalties or punishments imposed on the concerned respond- ent. We do not
propose to review the finding on this aspect of the matter under Article 136.
C.A. No. 1444/88, .we are told, has also abated as the appellant has taken no
steps to bring on record the legal representatives of the respondent but, in
view of the Tribunal's findings on merits, it is unnecessary to go 'into this
question now. The order of the CAT, in such cases, will therefore, stand
notwithstanding our conclusion being different from that of the CAT on the main
issue discussed above On the other hand, in most cases, the CAT, because of the
view taken by it on the main ques- tion, 'has not dealt with the merits of the
proceedings. For example, it was mentioned that in C.A. 316/81, the respond- ent
has been removed from service by the Deputy Director, an authority subordinate
to the Director who had appointed him.
aspect has not been considered and will have to be considered now. Similarly,
in C.A. 3044/89 filed by the employee, it is pointed out that the appellant had
been appointed by the Director of Ordnance Services in 1964. The power of
appointment was delegated to Commandants in 1971 and the respondent was penalised
by the Commandant, a subor- dinate authority, to whom disciplinary powers were
delegate by the President only in 1979. Though this point does not appear to
have been raised before the Tribunal, it goes to the root of the matter and we,
therefore, think that it should be left open to be considered by the Tribunal
cases before us are many and were decided princi- pally on the point of law
discussed earlier, we have not touched upon the facts or merits of individual
cases. We set aside the orders of the CAT in all cases--except C.A. Nos. 1443
and 4340/88 which stand dismissed as mentioned above--and direct the
Tribunal/High Court. to pass fresh orders disposing of the applications filed
before them in the light of our judgment. Where disciplinary proceedings have
been stayed at the stage of initiation or later because of the view taken by
the Tribunal, they should now be con- tinued and finished without delay in
accordance with law.
appeals are disposed of accordingly.
Appeals disposed of.