Mrs.
P.K. Sandhu Vs. Shiv Raj V. Patil, Hon'ble Speaker Lok Sabha & ANR [1997] INSC
341 (25 March 1997)
K.
RAMASWAMY, D.P. WADHWA
ACT:
HEADNOTE:
WITH
WRIT PETITION (C) NO.69 OF 1997 O R D E R Writ petition No. 785/95 has been
filed by Mrs. P.K. Sandhu, one of the in service officers in the Lok Sabha
Secretariat, seeking issue of a writ of Quo Warranto against respondent Nos.5
to 10 to show their functioning in their respective capacities, viz, Respondent
No.5 & 6 as Additional Secretaries, Respondent No.7 to 9 as joint
Secretaries and Respondent No.10 as Secretary to the Speaker, Lok Sabha. After
Perusal of the relevant Rules, this Court after hearing the counsel at length
passed the following order on August 2,1996:
"The
petitioners, inservice officers in the Lok Sabha Secretariat, are questioning
in this writ petition the appointments of respondent No.5 to 9, two Addl.
Secretaries
sand three joint Secretaries, on deputation. Article 98 of the Constitution
provides for secretariat to each House of parliament and the secretarial staff
to assist the Hon'ble Speaker and Hon'ble the Chairman of the Rajya Sabha
respectively. Under its proviso, common posts in both Houses of Parliament is
permissible. By operation of Article 98(2) the parliament may by law, regulate
the recruitment, and the conditions of service of persons appointed, to the
secretarial staff of either House of parliament. until the provision is made in
this behalf by the parliament , clause (3) of the Article provides that the
President may, after consultation with the speaker of the House of the people
or the Chairman of the Council of States as the case may be, make rules
regulating the recruitment, and the conditions of service of persons appointed,
to the secretarial staff of the house of the people or the Council of States,
and any rules so made shall have effect subject to the provisions of any law
made under the said clause.
In
exercise of the said power under clause (3) of Article 98 the President of
India after consultation with the Speaker framed rules called the Lok Sabha
Secretariat (Recruitment and Conditions of Service) Rules, 1955.
Rule 4
provides the method of recruitment. Sub-rule (1) clause (a) provides method by
promotion of any person employed in the Secretariat; clause (b) by permanent
transfer or deputation of a person serving outside the secretariat in
connection with the affairs of the union or of a State;
(C) by
direct recruitment. Sub-rule (2) of Rule 4 empowers the speaker by order to
specify the method or methods by which post or class of posts may be filled,
determine the proportion of vacancies to be filled by such method and in case
of recruitment by promotion, specify the class of officer who, and the
conditions subject to which they, shall be eligible for such promotion from
time to time. Rule 5 prescribes the qualifications for recruitment with which
we are not presently concerned.
It
would appear that though from time to time the Rules came to be amended with
regard to the recruitment and appointment of various officers, as regards the
appointment to the posts of Secretary and Joint Secretaries initially they
remained appointment by promotion 100% and no amendment in that behalf came to
be made. It would appear that due to increase the work in the Lok Sabha
Secretariat the Speaker convened the meeting of the opposition leader and Floor
leaders of all the political parties . Thrice, the leaders had met and they
have decided certain procedure to be adopted in recruitment the posts of
various categories. For the posts of Secretaries which include Additional
Secretaries and joint Secretaries, suggestions came to be made for appointment
by promotion, so long as the inservice candidates are available and merit and
ability alone should be taken into consideration in giving promotions.
Where inservice
candidates are not available for promotion, candidates serving outside the
Secretariat would be taken on deputation.
Pursuant
to that recommendation of the Committee, the Secretary General has called for
the prevailing procedure in other departments, At that stage, pending
decisions, respondent Nos.5 to 10 came to be drafted on deputation as
Additional Secretaries and Joint secretaries.
It is
seen that the statutory rules having been made, one of the methods as provided
under rule 4(1)(b) is, by deputation. it would be obvious that drafting the
officers serving in the U.O.I or States outside the Lok Sabha Secretariat would
be inconsistent with, unless suitable amendments are made to the Rules. When we
have asked the learned counsel for respondents to place before us any orders
that might have been passed by Hon'ble the Speaker in that behalf, he placed
the entire record before us. We have perused the record and found that there is
no statutory amendment to the rules came to be made. We find some orders but do
not cover the aforesaid offences. We are assured by the learned counsel that
expeditious steps would be taken to have the rules amendment as per law and
place before us for further consideration . it would be obvious that to improve
efficiency of administration and also to enthuse discipline and inculcate among
inservice officers the spirit of competence, efficiency and excellence,
opportunities for promotions are necessary. it would provide impetus to achieve
the above objectives. This aspect also needs to be kept in view in amending the
rules. The counsel sought for and is granted two months time to take the steps
in that behalf and place before us the relevant amended rules for further
hearing in the matter.
Post
immediately after two months." In furtherance thereof , the Speaker
amended the Rules and issued the Order dated October 19, 1996. it has been duly published and came into force with effect
from October 19,1996. The title of the order reads as
under:
"The
Lok Sabha Secretariat (Methods of Recruitment and Eligibility Conditions for
Appointment) Amendment order, 1996." By operation of clause (2), this
order has come into force with immediate effect. The method of recruitment,
eligibility conditions for appointment for the posts of joint Secretary,
Additional Secretary and Secretary General in the Lok Sabha Secretariat shall be
, by operation of Rule 1 thereof, as indicated in the Scheduled attached
thereon.
The
Schedule mentions that for the posts of Joint Secretary in the scale of
Rs.5900-6700/-, the method of recruitment is 75% by promotion, failing which by
transfer on deputation; and 25% by transfer on deputation; provided that the
Speaker may, at his discretion, fill up a vacancy falling to the share of the
transfer on deputation by the method of promotion. The eligibility conditions
for promotion have been mentioned in column 3, namely, "By selection from
amongst officers holding posts of Director in the Lok Sabha Secretariat in the
pay scale of Rs.4500- 5700/- with at least three years of service in the scale
and a total of seventeen years of service in Group `A' posts.
For
the purpose of this provision, service in Group`A' posts will also include
service rendered in functionally corresponding posts prior to their being assigned
Group `A' scales." For transfer on deputation, it is mentioned as under:
"By
selection from amongst:
1. officers
belonging to All India Services/Central Services holding posts of Joint
Secretary or equivalent or officers of these services who have been approved
for appointment as joint Secretaries by the respective Cadre Controlling
Authorities.
2.
Officers of the state Legislature secretariats holding posts comparable to that
of joint secretary in the Government of India, that is, the scale of Rs.5900-6700
OR officers of these Secretariats who have been approved for appointment to the
said posts on the said scales by their respective Cadre Controlling
Authorities.
The
period of transfer on deputation shall not ordinarily exceed three years."
Similarly, for the post of Additional Secretary;, the conditions have been
mentioned as under:
"FOR
PROMOTION By selection from amongst officers holding posts of joint secretary
in the Lok Sabha Secretariat in the scale of pay of Rs.5900-6700, with atleast
three years of service in the scale and a total of twenty years of service in Group`A'
posts.
For
the purpose of this provision, service in Group `A' posts will also include
service rendered in functionally corresponding posts prior to their being
assigned Group `A' scales.
FOR
TRANSFER ON DEPUTATION By selection from amongst:
1
Officers belonging to All India Services/Central Services holding posts of
Additional Secretaries or equivalent OR officers of these services who have
been approved for appointment as Additional Secretaries by the respective Cadre
Controlling Authorities.
2
Officers of the state legislature Secretariats holding posts comparable to that
of Additional Secretary in the Government of India, that is, in the scale of
Rs.7300-7600 OR Officers of these Secretariats who have been approved for
appointment to the said posts on the said scales by their respective Cadre
Controlling Authorities.
The
period of transfer on deputation shall not ordinarily exceed three years."
For the post of Secretary, it has been mentioned as under:
"By
selection by the speaker in consultation with the Leader of the House and the
leader of the Opposition from amongst those who have made their mark by long
years of service in the parliament or State Legislatures or the Civil Service,
appointment being by any of the methods of recruitment Viz, Promotion,
deputation, contract, as may be considered appropriate on each occasion." Shri
Aruneshwar Gupta, learned counsel for the petitioner, contends that this Court
has indicated in the order that to improve efficiency of administration and
also to enthuse discipline and inculcate, among in service officers, the spirit
of competence, efficiency and excellence, opportunity for promotion would be
made available. This method of reserving 75% recruitment by way of promotion
and giving option to call for transfer on deputation from other sources is
ultra vires. We find no force in the contention. It is seen that the rule
indicates that in service candidates would be eligible to be considered for
promotion to the extnt of 75% of the posts in accordance with the eligibility
conditions prescribed in column 3 thereof. In that event, if the officers were
not found eligible to be promoted, instead of keeping the post vacant and work
suffered, options have been kept given to the Speaker to take the service of
other officers on deputation. Therefore, the officers on deputation would
remain on deputation without any incursion into the 75% quota reserved for the
promoted officers. As and when the promoted officers are found to be fit for
promotion, considered and promoted, the deputation officers necessarily would
give place to the officers promoted within the 75% quota. 75% quota for inservice
officers encourages the officers and inculcates spirit of competence, character
and integrity, Otherwise, the inservice officer would lose his chances of
promotions to higher echelons of service.
Equally,
induction of officers of competence and ability on deputation of 25% quota will
be an opportunity to accelerate competence and efficiency apart from improving
excellence.
Therefore,
the respective quota is fair and in the best interest of the service. It cannot
be charactersied as arbitrary.
Similarly,
it is contended that the Rules have not been given any retrospective effect
and, therefore, the officers on deputation, i.e., respondent Nos.5 to 10 is bad
in law.
we
find no force in the contention. it is settled legal position that Rules would
be operative from the date when they came into force, namely, in this case, October 19, 1996. Therefore, the officers on
deputation would get legal right to remain in service from that date. Though
they have been drafted earlier in consultation with the leader of the
opposition etc., it is contended that the deputation to the Secretariat service
was not in accordance with the Rules and, therefore , it is not valid in law.
With a view to remove the ambiguities, we had directed the Hon'ble the Speaker
to take necessary steps by way of an amendment to the Rules. In furtherance
thereof, the above Rules came to be made. The Rules are now streamlined.
It is
seen that in 1955 Rules, which were framed by the Speaker in consultation with
the president by exercising the power under clause (3) of Article 98 of the
Constitution of India, Rule 4 contemplates the method or methods by which a
post or class of posts may be filled. Since the 1962 orders are only out come
of exercise of the said power, which was further modified by amendment in the
order dated December 1, 1974, the power of modification of the original order
was still available to the Speaker and, therefore, the deputation of
respondents Nos. 5 to 10 was not without any authority of law or in excess of
authority. Therefore , they are not void ab inition for issue a writ of Quo Warrnato.
it is not necessary for us to decide the controversy whether the Speak had
power, when services of Respondents 5 to 10 were requisitioned and availed of
on transfer basis from the All India Administrative Service for the reason that
under the amended Rules, one of the sources of recruitment to the service is
transfer. Therefore, the continuance of Respondents 5 to 10 on deputation is in
accordance with law and their retention in Lok Sabha Secretariat is Valid as
they have legal authority to remain in its Service. The further contention that
availment of the services of the Secretary General on contract basis is
invalid, is without substance. it is settled legal position that an in services
officer, if taken on contract basis during the period of service, renders
service on contract basic and on expiry thereof he gets to his substantive post
in the parent Department from where he came to be in the services of the Lok Sabha
Secretariat. In the interregnum , he cannot be compelled to lose his lien on
the substantive post in the parent Department. Even if the services of an
incumbent on superannuation is required in the public interest, the same can be
availed in contract basis. Equally, if any other competent officer who on
attaining superannuation from any other service was required to be taken in due
to exigency of the service, it may be open to the speak to avail of services of
such an experienced officer on contract basis for a specified period. Thus in
either event the option available to the speaker to avail of the services of an
experienced officer as Secretry General, cannot be assailed as invalid or
arbitrary.
It is
then contended by Shri Aruneshwar Gupta that the petitioner was recruited
through direct recruitment from the state service op Punjab and she has been continuing in
service. The respondents have disputed the correctness thereof . We need not go
into that aspect of the controversy. His only contention is that 17 years of
service prescribed in the Rules for promotion is unwarranted and arbitrary. We
do not find any merit since the rule making authority is equally competent to
prescribe the conditions of service for promotion. 17 years' service is one of
the conditions prescribed by the Speaker for promotion to the next higher post.
Under these circumstances, the Rule cannot be characterised as ultra vires of
power. It would be obvious that when promotion is sought to be made with a view
to ensure competence and efficiency in service, obviously, the Speaker had in
view the length of service as one of the conditions for promotion. Under these
circumstances, prescription of length of service for promotion is not an
arbitrary exerciser of power violating Article 14. Whether the petitioner, Smt.
P.K. Sandhu, would be considered for promotion or not and whether she fulfills
the qualifications, conditions of service are all matters for the Speaker to
consider and until that exercise is done, we need not go into that controversy.
The
writ petitions are accordingly dismissed. No costs.
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