Full Judgment Text
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PETITIONER:
MRS. P.K. SANDHU
Vs.
RESPONDENT:
SHIV RAJ V. PATIL,HON’BLE SPEAKER LOK SABHA & ANR.
DATE OF JUDGMENT: 25/03/1997
BENCH:
K. RAMASWAMY, D.P. WADHWA
ACT:
HEADNOTE:
JUDGMENT:
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
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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
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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:
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"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
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‘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
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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.
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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.