Keshorinandan Srivastava vs Union of India (UOI) and Others

T.N. Singh, J.—A valuable right was nipped in the bud is the complaint we hear in this writ application. The Petitioner joined service under the Govt. of Assam in the year 1966, got confirmed therein in 1969, but lost the right to encadrement in the Mizoram Civil Services after joining therein on 24.2.72 under historical compulsion, Union Territory of Mizoram was carved out of the State of Assam to form a new administrative unit pursuant to North Eastern Reorganization Act, 1971, for short, the Act, There is no challenge in this application to the virus of the Rules under which civil services in the Union territory was organized but the grievance is that the relevant rule having been misconstrued and misapplied in his case the Petitioner has been deprived of the valuable right to encadrement in the said services.

When the Act came into force the Petitioner was serving as Law-cum-Liaison Officer in the Finance Department of the Govt. of Assam in the pay scale of Rs. 500-1100/- P.M. (revised as Rs. 700-1300/- P.M.). His services ware placed at the disposal of the Govt. of Mizoram for appointment as Officer-on-Special Duty and Under Secretary. However, on 13.3.72, a notification (Annexure A) was published under the signature of Respondent No. 3, the Chief Secretary to the Govt. of Mizoram appointing the Petitioner as an Under Secretary in "officiating capacity" in the pay scale of Rs. 550-40-830-EB-45-1100/- P.M. with a special pay of Rs. 150/- P.M. plus usual allowances with effect from the date of his taking over charge. This was superseded by the notification (Annexure B) published on 6.10.72 in virtue of which the Petitioner came to be appointed" in a temporary capacity as Under Secretary in the pay scale of Rs. 750-50-950-1200/- P.M. plus other allowances with effect from 24.2.72. On 11.10.77 the Central Govt. in exercise of its power u/s 64(2) of the Act made an order naming therein the Petitioner and others who were required to serve on and from the appointed day (21.1.72) in connection with the administration of the Union Territory of Mizoram. Under Article 309 of the Constitution the Mizoram Service Rules 1977 (shortly, the Rules) were thereafter framed, promulgated and given effect to on and from 23.11.77. A notification (Annexure D) was published on 29.12.77 under the signature of Respondent No. 3 by which appointments were made under Rule 15 of the Rules of 31 officers against the cadre-strength of 36, to the Mizoram Civil Services constituted under the above notification. In this notification the Petitioner''s name did not find mention but, it is averred, practically all officers who were previously serving under the Government of Assam came to be included therein. Although the Petitioner was the senior most Under Secretary having maximum length of Class 1 service at the time of initial constitution of the Mizoram Civil Service and fulfilled all requisite qualifications required for appointment under Rule 15(1) of the said Rules, it is averred, his case was not even placed before the Selection Board constituted under Rule 6 of the said Rules. Therefore, being aggrieved, the Petitioner submitted on 7.2.78 a representation (Annexure E) to Respondent No. 3 wherein he catalogued the various offices held by him during his service career as a result of which he claimed having gained eleven years experience as a Secretariat Officer of which six years could be counted according to him as experience gained by him as a Field Officer in the capacity of Registrar of Firms and Societies. He complained therein that although he was the senior most Under Secretary in the Mizoram Secretariat be had no prospect of promotion as there was no likelihood of constitution of a separate Judicial Service in near future in Mizoram and there did not exist any possibility of any other service also being created in which he could be encored to protect his prospect for promotion etc. The Petitioner avers that on his representation made personally to the Lt. Governor the latter asked the Chief Secretary to take up his case with the Govt. of India. As a result, Govt. of Mizoram was informed by the latter vides their letter No. 14019/3/78 UTS, dt. 12.10.78, that they had no objection to the encadrement of the Petitioner in the Mizoram Civil Service. A notification however came to be made on 4.1.79 determining "finally" the In terse seniority of the officers appointed earlier (vide Annexure D, supra). On 7.1.79, thereafter, the Petitioner made a representation to the President of India (Annexure H) through proper channel. However, the validity of the notification itself was challenged in this Court in Civil Rules No. 395, 396 and 487/79, which were disposed of by a common judgment by one of us (Hansaria, J.) or 5.9.80 by which the seniority-list was directed to be modified. Pursuant thereto a modified seniority list was drawn up on 21.11.80 but despite his representation (vide Annexure I) as Petitioner''s name did not figure even in this list, he came to this Court with the instant application.

The stand taken by the Respondents in the counter affidavit is that just before his joining service under the Govt. of Mizoram the Petitioner was holding an ex-cadre post in the Secretariat at Shillong under the Govt. of Assam. At the time of formation of the Union Territory there were already a large number of officers serving in the erstwhile Mizo District but due to the limited cadre strength under the Rules these persons even could not be encoder. Of these only 8 officers, and not the Petitioner who held the posts of Under Secretaries at the time of constitution of the services on 23.12.77, were members of Assam Civil Services Class II for which there existed specific rules. It is admitted that a communication dated 12.10.78 was received from the Govt. of India to the office that they had "no objection" if the case of the Petitioner was "placed before the Selection Board". But, as Mr. Bezbarua, the learned Senior Counsel for Mizoram also forcibly argued before us, the deponent swears that it was within the competence of the Administrator acting under Rule 15(2)(i) to suggest names for consideration of the Selection Board of such persons whom he considered suitable for appointment to the service. The case of the Petitioner, it is asserted, was not ignored and to support this the relevant nothings from the file of the Secretary (Appointment) made on 30.11.78 (extracted at ''a'' below) and that of Lt. Governor made on 28.12.78 (extracted at ''b'' below) are quoted:

(a) The question of encadring S/Shri K.N. Srivastava and Deoghnuna was discussed. It was felt that these two officers have specialized lines of work and experience and they should stick to the same. It should be possible to find suitable posts for promotion for these officers in their respective departments...the decision not to encode them in M.C.S. should stand.

(b) ...Whilst in regard to K.N. Srivastava, Under Secretary (Law) it is fell that his services will be more useful if he continues to be in the Law Department having legal background. His promotion prospects can be taken care of, as and when he becomes eligible for promotion to the higher post in the department concerned.

The admitted position, therefore, is that the name of the Petitioner was not placed before the "Selection Board" although it is asserted that the legitimate claim of the Petitioner for promotion in the Law and Judicial Department had been considered and be was duly promoted from 20.12.79 as Deputy Secretary in the said Department. In virtue of his position as an officer of the Law Department he was selected and thereby he benefited by the training undergone by him in London under the Colombo Plan. With effect from 19.6.81 Mizoram Law and Judicial Department (Group A Post) Recruitment Rules, 1980, came into force and the Petitioner being governed by these rules his promotion prospects are being taken care of and it is asserted that the administration has already been very fair in dealing with him. Indeed, he has been released at his request to joint the post of Joint Director (Legal) in Food Corporation of India, New Delhi, for which be has been selected because of his experience in law and Judicial Departments.

It is necessary to refer to some of the provisions of North Eastern Area (Reorganization) Act, 1971, for abort, the Act, which have a bearing on the interpretation of the Mizoram Civil Service Rules 1977. In part VIII, embracing Sections 61 to 69, are specified "provisions as to services" and those relating particularly to "services in the existing State of Assam" are posited mainly in Section 64. In Sub-section (2) thereof it is provided that the Central Govt. may by order, made at any time before or after the appointed day (21.1.72) in respect of any person, "including persons borne on any cadre", serving at the relevant time in connection with the affairs of the existing State of Assam require him to serve in connection with the Administration of the Union Territory of Mizoram and such person with effect from the specified date shall be deemed to have allocated to the Union "and thin could be done" notwithstanding anything in terms of appointment or conditions of service" of such person. By Section 66(1) although power to make rules under Article 309 of the Constitution in respect of conditions of service of persons "serving in connection with the affairs" of the Union Territory is expressly saved, in the proviso thereto is posited a prohibition against the conditions of service to be altered to the disadvantage of the person "allocated" which, in our opinion, should not be given a literal and restricted interpretation should be read in its context and setting. Continuance in the same post or office of a person in the service in the newly created Union Territory is provided by Section 67(2) but by Sub-section (4) the power of a competent authority of passing any order in respect of such a person affecting his continuance in such post or office is expressly saved. Advisory Committees are contemplated u/s 68 for the purpose of "ensuring fair and equitable treatment to all persons affected by the provisions of this part and a proper consideration of any representation made by such person". A plain reading of these provisions make it abundantly clear that no distinction was sought to be made between person holding cadre post and those who were not borne on any cadre but the calculated effort of the Act was directed towards securing "fair and equitable treatment" to all persons who were in the service of the Govt. of Assam prior to the appointed day and were "allocated" to the Union Territory. No distinction either appears to have been made under the Act between persons who were holding some posts or office in the Union Territory prior to it inauguration and those who were "allocated" to serve under the new Govt. It also appears clear to us that prospects of both classes of persons available to them under their per-existing conditions, of service were not to be denied to them under the new service rules to be framed, for new administrative unit of Mizoram

There cannot be any doubt therefore that the Rule have to be read and constructed in the light of the aforesaid provisions as these are directed obviously to securing compliance with the constitutional mandate of Article 16. Part; VI of Rules entitled "initial Constitution of service" immediately concerns us in this case. But a reference may also be made to Rule 6 contained in Part III which deals with "method of recruitment. Rule in provides for constitution of a Selection Board shortly the Board, and that recruitments shall be made on the recommendation of the Board. Relevant portions of Rule 15 of Part VI which deal with "initial appointment of person to the service'' bear extraction:

Initial appointment of persons to the service: (1) The Administrator may, at the commencement of these rules, appoint to the service any person who at such commencement is holding any of the pouts specified in Schedule I.

(Proviso and Explanation not relevant)

(2)(i) For the purpose of appointment, of persons referred to in the Sub-rule (1), the Administrator may require the Board to make a preliminary selection from among the officers referred to in that sub rule or such of them as in his opinion are suitable for appointment to the Service, The names of the officers so selected shall be arranged by the Board in the order of merit with due regard to seniority,

(ii) The list prepared under Clause (i) shall be forwarded by the Board to the Administrator and initial appointment to the service shall be made by the Administrator in order of merit of persons included in this list.

This rule apparently confers on a person who was holding, among others, the post of Under Secretary which the Petitioner was holding on the date of commencement of the Rules, the right to be considered for encadrement under the Rules in the manner provided in the Sub-rule (2). Although the word "preliminary selection" is used in Clause (i) of Sub-rule (2), the final choice itself, in virtue of Clause (2) thereof is vested really in the Board because this clause obligated the Administrator to make the initial appointment to the service only of persons included in the list prepared by the Board and not of any other person. However, we have to unravel the catch in the expressions "in his opinion" and "suitable for appointment" of sub-Clause (i) because the bone of contention raised in this case lies undoubtedly embedded in them. Whether the Administrator was, by these expressions, invested with an absolute discretion as has been contended before us? We have to answer this question.

A Constitution Bench, in The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, had to construe the expression "in the opinion of the Central Govt." to be found in Section 237(b) of the Companies Act. Hidayatullah, J. in that case observed that the provision itself having marked out the ambit of the power by indicating therein the requirement "there are circumstances...etc." the power could not be held to be purely discretionary. His Lordship observed that "it is not sufficient to assert that the circumstances exist and give no clue to what they are because the circumstances must be such as to lead to a conclusion of certain definiteness". Shelat, J. opined that the order can also be challenged if it is "passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation". These views of Hidayatullah and Shelat, JJ. were approved and followed by Hegde and Sikri, JJ. in Rohtas Industries Vs. S.D. Agarwal and Others, While construing the same provision their Lordships held that if the Court comes to the conclusion that "no reasonable authority would have passed the impugned order on the material before it, then the same is liable to be struck down". Another aspect of discretionary power was explored in Swadeshi Cotton Mills Vs. Union of India (UOI), In this case the majority speaking through Sarkaria, J. referred to the decision in Barium Chemicals (supra) and observed that "the authority has to form that opinion reasonably like a reasonable person "even in cases in which the discretionary power as to formation of the "opinion" by the statutory authority is not regulated in terms. Reference may also be made in this connection to the decision in Pacified ( 1968-J-All E.R. 694) wherein the Minister''s "full and unfettered discretion" to act in the matter was saddled judicially by the requirement that irrelevant matters must be ignored and relevant matters must be considered in so acting so that the object of the statute conferring the power was not frustrated. These decisions, according to us, lay down the golden rule that statutory discretionary power enabling formation of subjective opinion carry with it the duty to apply objective tests in such matters.

Thus, in our opinion, the Administrator''s "opinion" as to suitability of a person for appointment to the Service from Among the offices holding any of the posts referred to in Sub-rule (1) of Rule 15 in the instant case must be based on relevant, and not extraneous considerations and the conclusion reached in the matter must be that of a reasonable man acting in a reasonable manner. The word "suitable", in our opinion, in the context and setting must be referable to a person who is not unsuitable to bold any of the posts enumerated in Schedule I because the very fact that the person concerned holds the post at the relevant time manifests existence of some manner of right or interest in the post of that person by which the discretionary power to form "opinion" about persons qualified to be recommended for selection to the Board must be held to be regulated. On apriority considerations, therefore, for this purpose the administrator will be required to consider the performance of the officer concerned in the post or posts he has held since his "allocation" prior to the constitution of the Civil Services under the new Rules to come to the conclusion acting reasonably like reasonable man whether not he was unsuitable to continue in the post held by him or to hold any other post enumerated in Schedule I. The Administrator, in determining the suitability of the person for appointment to the newly constituted civil service, bat also, therefore, to take into account the rights, prospects and privileges available to such person under the rules applicable to him before the "allocation". This requirement is implicit in the concept of "allocation" and is mandated by the provisions of the Act itself to prevent injustice being done in any case to the civil servant by enabling the Administrator to act reasonably like a reasonable man. According to us it is not open to the Administrator to consider merely factors appertaining to administrative expediency relegating to background the legal requirement of avoiding injustice being caused to the concerned civil servant. The screening process of the Administrator must not smack of either automatism or autoerotism as the provisions of the Rules and the Act must be construed as fulfilling the object and purpose of Article 16 which impose upon him a constitutional duty to act reasonably in conducting the process.

In this view of the matter we consider that in the instant case the sole reason for not placing before the Board the Petitioner''s name for "preliminary selection" for the purpose of encadrement being his possessing experience in "specialized lines of work" it is difficult to hold that the appropriate suitability test as contemplated under Rule 15(2)(i) was borne in mind. His past performance in the offices he held prior to the constitution of the Civil Service has not been considered at all despite the Petitioner passing there for in his representation. Because of the fact that the Petitioner was not a member of the Assam Civil Service, rights privilege and prospects which were available to him in similar situations under the rule applicable to that service have, also been ignored. The fact of "allocation", did not, in our opinion, deprive the Petitioner of such a consideration. On the other hand the concept of "allocation" carries in it, according to us, the necessity to bear such a consideration in mind. That the Petitioner unlike some others who wore duly encoder, was not a member of Assam Civil Service, or that he was holding an encoder post under Assam Govt., as has been contended before us, were irrelevant in this context according to us. We consider in this connection appropriate to refer to Rule 7 of the Assam Civil Services (Class I) Rules 1960 which provides for recruitment to the said service by "selection". Clause (b) of sub-Rule (1) thereof contemplates a situation in which any person who his completed eight years'' continuous service under the Govt. in a post involving duties comparable in importance and responsibility to that of Assam Civil Service (Class I) and/or Class (II) can have a chance or prospect of his name being recommended to the Governor for the purpose of recruitment under the said rule. As under Rule 15(2) of the Mizoram Rules, under Sub-rule (2) of these rules also it is contemplated that "initial scrutiny" of cases of persons referred by the Governor to the Selection Committee shall be made by such Committee. The sub-rule also provides certain criteria for the guidance of the recommending authority as well as the Selection Committee in such matters. These, notably (a) his executive ability and (b) the fact that his services can be more profitably utilized by appointment to the Service, are relevant in the context of the instant case, Because, in 1977 when the right of the Petitioner for consideration for encadrement under Rule 15 of the Rules became available to him be would have completed more than eight years service if be had continued to serve under the Govt. of Assam and as such it would have been possible for him to stake a claim for appointment to Assam Civil Service (Class I) by "selection" under aforesaid Rule 7. On being "allocated" to Mizoram should he stand deprived of his prospect? In our opinion, therefore, the Administrate ought to have evolved and applied to the case of the Petitioner a similar suitability test bearing other factors relevant under Rule 15 of the Rules in mind, but nothing of this sort was done in this case administrative expediency appears to have acted is the sole motivating factor which resulted in denial of the opportunity available to the Petitioner under Rule 15 of the Rules. Accordingly, his subjective "opinion", though permissible, Was tainted due to non-application of appropriate objective tests.

We have no hesitation, therefore, to hold that in the instant case the name of the Petitioner was not placed before the Board for selection as a result of the Administrator acting in an unreasonable manner without having due regard to the appropriate suitability requirement and taking irrelevant matter into consideration. It appears to us that there was sufficient material before him to take a decision under Rule 15(2)(i) to refer for the consideration of the Board the case of the Petitioner and the authority having failed to perform not only legal but also its constitutional duty under Article 16 to act reasonably in this matter, we are satisfied that a good case has been made out for directing Respondent No. 2 to consider afresh the Petitioner''s case. Accordingly, we direct that a reasoned decision in the matter should be rendered afresh by the authority concerned within a period of two months ignoring irrelevant matters and bearing only relevant factors in mind in the light of the observations made above.

We do not think if the subsequent promotion of the Petitioner as a Deputy Secretary and framing and applying to his case the Mizoram Law and Judicial Department (Group A Post) Recruitment Rules 1980 can held to (sic) disenabled him from challenging the validity of the vacuous (sic) 30.11.78 and 28.12.78 by Respondent No. 2 by which be (sic) deprived of the right which accrued to him under Rule 15 of the Rules with the commencement thereof on 23.12.77 under (sic) be was entitled to be considered for appointment to a post to the were constituted tinder the said Rules.

In the result the application is allowed as aforesaid and the rule is made absolute. But in the facts and circumstances of the case we make no order as to costs.