Kamta Prasad Singh vs The State of Bihar and Others

S.B Sanyal, J.—Whether the Commissioner of a Division, not being the appointing authority or an authority superior to the appointing authority, is empowered to pass an interim order of suspension of a Prakhand Vikash Padadhikari belonging to Bihar Agricultura. Put very shortly, the essential facts are these. Both the petitioners belong to Bihar Agricultural Service. On subsequent promotion they became members of Bihar Agricultural Service Class II and came to be appointed as Prakhand Vikash Padadhikari in the district of Godda and Prakhand Vikash Padadhikari Jamtara, in the district of Dumka. The duties of the petitioners required them to do fuller implementation of the development work in agriculture for fulfillment of twenty point programmed of the Government.

Kamta Prasad Singh (petitioner in C. W.J.C. No. 4679 of 1986) was suspended on detection of grave irregularities in discharge of his duties under rule 49A of the Civil Services (Classification, Control and Appeal) Rules by the Commissioner, Dumka, whereas Rajendra Prasad Singh (petitioner in C.W.J.C. No. 4711 of 1986) was suspended on similar allegations on the 3rd of October, 1986, by the Commissioner, Dumka. The appointing authority of both the petitioners is admittedly the State Government and the suspension is in the purported exercise of the powers conferred under rule 49A of the Civil Services (Classification, Control and Appeal) Rules, hereinafter to be referred to as "the Rules", read with a letter of the Chief Secretary to the Government of Bihar bearing No. 2648 dated 28th December, 1985 (Annexures 7 and 4 respectively. Clause 4 of the aforesaid letter of the Chief Secretary conferred power on Divisional Commissioner to place Class II officers under suspension within his jurisdiction after necessary consultation with the divisional level officer of the concerned department. The Commissioner was also empowered to initiate departmental proceedings against such officers against whom there is prima facie charge of corruption, irregularities, indiscipline and misconduct.

In both the writ petitions the relief sought is for quashing the order of suspension as being wholly without jurisdiction and further seeking a declaration that the Government letter (Annexures 7 and 4 respectively) is ultra vires rule 49A of the Rules.

Civil Services (Classification, Control and Appeal) Rules of Class I and Class II and Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 of Class III and Class IV employees have been adopted by a Notification No. III/R1-101/63-8051-A dated the 3rd July, 1963, published in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India by the State Government to be effective from 22nd December 1956. The rules came to govern Class I and Class II employees of the State Government. On 8th August 1973, vide Notification No. 12110 P, rule 49A was introduced. The relevant extract is as hereunder:

49A.(1) The appointing authority or any authority to which it is subordinate or the Governor by general or special order, may place a Government servant under suspension

(a) where a disciplinary proceeding against him is contemplated or is pending; or

(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial.

According to Learned Counsel for the petitioners rule 49A does not empower any other person than the persons identified in rule 49A, namely, the appointing authority or any authority to which the appointing authority is subordinate or the Governor, to suspend the petitioners. The Commissioner who passed the order of suspension is neither the appointing authority nor an authority superior to such an authority nor the Governor has passed a general or special order placing the petitioners under suspension. According to Learned Counsel, the impugned letter of the Chief Secretary dated 28th December, 1985 has no sanction of law, since rule 49A does not confer the power of delegation to another authority. The impugned executive order does not seek to supplement rule 49A, a rule made under Article 309 of the Constitution of India. On the other hand, by the executive order rule 49A is intended to be amended which is impermissible.

Learned Counsel appearing for the State, on the other hand, contended that the direction issued conferring power on the Commissioner is wholly in consonance with the scheme of rule 49A. According to learned State Counsel, if this power is denied to the head of a division, who is bound to be a senior and matured officer of the Government, the administration is bound to suffer particularly when large schemes and development works are being carried out in his division. In spite of having observed grave irregularities in the discharge of duties of Class II officers, if the Commissioner has merely to act as a complaining officer even in a case requiring immediate suspension of such Class II officers, it will result in great administrative difficulties and inconveniences. This was the motivation which resulted in the issuance of the Government decision dated 28th December 1985. Learned Counsel also contended that the words "Governor by general order may place a Government servant under suspension" authorise the Government to issue executive order to confer the power of interim suspension on such other officers as it decides within scope of rule 49A. In elaboration of his argument, the learned Government Pleader No. IV asks us to read rule 49A (1) as follows by reading the words in rule 49A(1):

The appointing authority or any authority to which it is subordinate or (as) the Governor by a general or special order (may direct), may place a Government servant under suspension."

In order to appreciate the rival contentions, a reference to rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 is worth observing:

Suspension-(1) The appointing authority or any authority to which is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension

(a) where a disciplinary proceeding against him is contemplated or is pending, or

(aa) where in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State, or

(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial.

In substance, the learned Government Pleader No. IV wants us to read rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 in place of rule 49A of the Rules in order to give same meaning to rule 49A as envisaged by rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. But there is a marked difference between the two Rules. In rule 10 the persons noticed to pass an order of suspension are the appointing authority, the authority superior to it, the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, who may place a Government servant under suspension. The words "any other authority empowered in that behalf by the President" are significantly lacking in rule 49A of the Rules.

The other question seriously canvassed by the learned Government Pleader is that the Governor by general order may place a Government servant under suspension implies a power of delegation to any other authority to pass an order of suspension. This argument does not appeal to me. It is now well-established that in absence of a power of delegation in a statutory provision, the ultimate power required to be exercised by a particular officer cannot be delegated. A functionary who has to decide an administrative matter or the nature involved in the case can obtain the material on which he is to act in such manner as may be feasible and convenient but he cannot delegate the ultimate responsibility for the exercise of such power except where the law specifically so provides. Rule 49A does not contemplate any person other than those designated to place a Government servant under suspension. It does not envisage further delegation of power by the person authorised to take action. Our attention has been drawn to a large number of cases in this connection but a reference to the decisions of the Supreme Court in Pradyat Kumar Bose v. The Hon''ble Chief Justice of Calcutta High Court (A.I.R. 1956 Supreme Court 285) and A.K. Roy v. State of Punjab (A.I.R. 1986 Supreme Court 2160) is sufficient for the purpose. In this connection another well known rule of construction to be remembered is where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other modes of performance are necessarily forbidden. The intention of the rule making authority in enacting rule 49A was to confer a power on the specified authorities and, therefore, the power had to be exercised by those authorities and not otherwise.

Another argument which was very strenuously urged by the learned Government Pleader is that the impugned order could be passed is exercise of the executive powers of the State. Even though the said letter does not purport to be an executive action expressed in the name of the Governor, according to learned State Counsel, it is immaterial, since the validity of the order is not challenged on the ground that no such order by the Governor existed but merely on the ground that the letter was not issued in the name of the Governor. No doubt the direction in question does not conform to the provisions of Article 166 but it says in so many words that the impugned order was in fact issued by the State Government and under the direction of the State Government, the Chief Secretary circulated the decision to the concerned authorities. It is now well established that the provision of Article 166 is merely directory and not mandatory in character and even if the order does not conform to the form as envisaged under Article 166 it could still be established as a question of fact that the impugned order was in fact issued by the State Government and/ or the Governor-See R. Chitralekha v. State of Mysore (A.I.R. 1964 Supreme Court 1823). But the problem that stares the case is : assuming it to be an executive order properly made, can an order of such a nature be passed in view of rule 49A of the Rules made under Article 309 of the Constitution of India? It has become axiomatic by a catena of decisions that if rules are silent on any particular point, Government can fill up the gap and supplement the rules and issue instructions not inconsistent with the rules already framed. In the case of Lalit Mohan Deb v. Union of India (A.I.R. 1972 Supreme Court 995) it was held that the absence of statutory rules regulating the selection of assistants to the selection grade is no bar to the Administration giving instructions regarding promotion to the higher grade as long as such instructions are not inconsistent with any rule on the subject relying upon an earlier decision of the Supreme Court in the case of Sant Ram Sharma v. State of Rajasthan (A.I.R. 1967 Supreme Court 1910). What could not be done under the rules cannot be achieved by an executive fiat. Such a course is impermissible-See B.N. Nagarajan v. State of Karnataka (A.I.R. 1979 Supreme Court 1676). The right to fill up a gap and to supplement the rule by issuing administrative instruction is only permissible where the rule framed under Article 309 is silent on that point. To give effect to such an executive instruction it has to be subservient to the statutory provisions. In the case of District Registrar, Palghat v. M.B. Koyyakutty (A.I.R. 1979 Supreme Court 1060) the promotion to upper division clerks was governed by the rules and it was in accordance with seniority subject to the persons fitness for appointment. There was no minimum general educational qualification. By an executive order certain tests were sought to be prescribed as well as some minimum educational qualifications for being appointed as lower division clerks. It was held that there was no gap or void in the statutory provisions in the matter of promotion from the cadre of lower division clerks to that of upper division clerks. Therefore, by issuance of executive or administrative instruction tests and qualifications for purposes of appointment and promotion cannot be laid down. To the same effect is the decision in Bishundeo Mahto v. The State of Bihar (1982 BBCJ 45, F.B.) where it was held:

It is well-settled that where the rules under Article 309 of the Constitution are silent, the departmental circular may supplement them. But where there is any change brought about by the circular, which is in contradiction to the rules, the circular cannot prevail over the rules. The executive instruction may supplement but not supplant the rules."

The point of interim suspension is fully covered by rule 49A. It cannot be said that the Civil Services (Classification, Control and Appeal) Rules are silent on the question of interim suspension. It has noticed the persons who can impose the order of suspension. The impugned executive direction intends to bring about a change in the said provision by investing the Divisional Commissioners also with the power of suspension. This, in my opinion, is an attempt to amend rule 49A made under Article 309 of the Constitution. This is, therefore, impermissible by an executive fiat. However laudable the motivation might be in bringing about an executive direction to invest the Divisional Commissioners with the power to suspend Class. It officers after consultation with their immediate superiors for proper developmental work, the Government has failed to achieve the objective by issuing executive instruction in the face of the field covered by rule 49A of the Rules. Therefore, the executive order dated 28th December, 1985 (Annexures 7 and 4 respectively), so far as it relates to conferring power of suspension on Divisional Commissioners, is invalid, inoperative and ultra vires rule 49A of the Rules.

If the State Government at all intends to empower other officers to pass an order of interim suspension, rule 49A of the Rules has to be suitably amended in the light of rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Court cannot read words in the rule nor can amend the rule, when the rule is free of any ambiguity.

Since the order of suspension has been passed by the divisional Commissioner, who is neither the appointing authority nor the authority superior to it, the same is illegal and without jurisdiction and must, therefore, also be quashed. In the result, the writ petitions are allowed and Annexures 6 and 1 respectively are quashed. The order dated 28th December, 1985, so far as it relates to conferring power upon the Divisional Commissioners to suspend Class II officers, as contained in Annexures 7 and 4 respectively, is quashed. There will be no order as to costs.

Uday Sinha, J.

I agree.