CAUSE TITLE:
SIDDHART RAO VS GOVERNMENT OF NCT DELHI
DATE OF ORDER:
23rd December, 2022
JUDGE: HON’BLE
MR. JUSTICE CHANDRA DHARI SINGH
PARTIES:
Appellant: SIDDHARTH RAO
Respondent: THE GOVERNMENT OF NCT OF DELHI &ORS.
Subject
Siddharth Rao has challenged and sought order quashing the LG's order of June 6, 2013, terminating his service and declaring all his appointments in the Delhi Legislative Assembly invalid, as well as an earlier order relieving him of the office of Secretary, Delhi Legislative Assembly.The Delhi High Court recently dismissed a petition to the Speaker of the Delhi Legislative Assembly (LA) filed by a former Officer on Special Duty (OSD) seeking his dismissal by the Lieutenant Governor (LG) in 2013. The High court said the service was rightly terminated by the LG being the competent authority.
Brief Facts
- The petitioner worked for the SSB/Central Secretariat, Directorate General of Security, R.K. Puram, Delhi, as a Publicity Officer. On December 16, 1998, the then-Speaker of the Delhi Legislative Assembly wrote to the Secretary Services of the Delhi Government, recommending that the petitioner's services be obtained on deputation. As a result, the Petitioner was designated as the Speaker's Officer on Special Duty.
- The Speaker, in a letter dated December 29, 1998, requested the services of the petitioner on deputation from the Secretary of the Cabinet Secretariat. As a result, on December 31, 1998, the Cabinet Secretariat released the petitioner from his obligation to join DLA.
- The petitioner joined DLA as a Joint Secretary, and on 21-08-2001, the Speaker of DLA requested the Prime Minister to transfer the petitioner permanently in DLA, after which the petitioner was permanently absorbed in DLA and his name was struck off from his parent cadre with the approval of the Ministry of Home Affairs.
- The petitioner was later elevated to Secretary, and he was relieved of duty on 17-05-2010 and terminated on 06-12-2013.
- The current petition challenges the termination order on the grounds of noncompliance with Natural Justice principles and the Authority's lack of competence.
Legal Provision Involved
- Article 311 of Indian constitution
No one who is a member of the Union's civil service, an all-India service, or a State's civil service, or holds a civil office under the Union or a State, shall be dismissed or removed by an authority subordinate to that by which he was appointed.
- Article 226 of Indian constitution
Notwithstanding anything in Article 32every High Court shall have the competence to issue directions, orders, or writs to any person or authority, including, in appropriate situations, any Government, within the territory over which it has jurisdiction.
- Article 187 of Indian constitution
The House or each House of a State's Legislature shall have its own secretarial staff:
Provided, however, that nothing in this clause will be understood as prohibiting the formation of posts shared by both Houses of a legislature in a state with a Legislative Council. The State Legislature may, by legislation, regulate the recruitment and conditions of employment of employees appointed to the secretarial staff of the House or Houses of the State Legislature.
- Article 98 of Indian constitution
Each House of Parliament shall have its own secretariat: Provided, however, that nothing in this section shall be understood to preclude the formation of offices shared by both Houses of Parliament.
The recruitment and conditions of employment of employees appointed to the secretarial staff of either House of Parliament may be regulated by law by Parliament.
ARGUMENTS FROM THE SIDE OF PLAINTIFF
- The petitioner in this case is challenging an order dated 17 May 2010 and another order dated 6 December 2013, which were issued by the respondent no. 2, who was not the appointing authority or disciplinary authority of the petitioner.
- The petitioner was allegedly relieved of their position as Secretary of the Delhi Legislative Assembly (DLA) in 2010 and later had their services terminated in 2013 while the model code of conduct was in progress. It is claimed that the termination of the petitioner's services was carried out without any inquiry and in violation of Article 311 of the Indian Constitution.
- The petitioner also alleges that their salary was stopped completely from 1 June 2010. It is further stated that the petitioner was on deputation as an officer on special duty to the Speaker of the DLA, with a rank equivalent to Joint Secretary at the DLA Secretariat, and was permanently absorbed in the DLA on completion of their deputation period in 2001. The petitioner is seeking relief from the court with regard to these issues.
ARGUMENTS FROM THE SIDE OF DEFENDANTS
- The petitioner in this case was relieved from their position as the officiating Secretary of the Delhi Legislative Assembly (DLA) on 17.5.2010 and later terminated on 6.12.2013 following a show cause notice dated 14.3.2013 regarding misconduct.
- The petitioner did not dispute the show cause notice nor offer an explanation, nor attend personal hearings on 5.8.2013 and 19.8.2013. The respondents in this case argue that the Speaker of the DLA did not have the power to recruit an Officer on Special Duty (OSD) on a non-existent post, grant absorption to the post of Joint Secretary, or appoint the petitioner to the post of Secretary, especially in the absence of any recruitment rules for the positions of Joint Secretary and Secretary in the DLA.
- They argue that unlike in states, the DLA does not have the powers provided under Article 187 of the Indian Constitution to have separate secretarial staff, as the DLA is not a state but a Union Territory. They claim that the DLA does not have a separate secretarial cadre, and the Speaker or any other authority in the DLA does not have the competence to create a post or make appointments to a post, including the post of Secretary.
- The respondents further argue that the President of India, through the UPSC (Exemption from Consultation) Regulation, 1958, has not exempted Group A posts from consultation requirements, and therefore, the appointment of the petitioner to the posts of Joint Secretary and Secretary in the DLA without consulting the UPSC is contrary to law. They also argue that the petitioner's appointment as OSD on a non-existent post, without being on regular service with the government, was illegal
Judgement
1) Does the Speaker of the Delhi Legislative Assembly have the authority to recruit Officers on Special Duty (OSD), to grant absorption to the post of Joint Secretary, and to appoint to the post of Secretary in the absence of any Recruitment Rules for the posts of Joint Secretary and Secretary in the Delhi Legislative Assembly?
The Court emphasised that, after carefully reviewing all relevant constitutional provisions, appointments to the position of Secretary, DLA fell outside the scope of the office of Speaker, DLA, who has power only to the extent of being advised and not even to his concurrence. The relevant Appointing Authority is the Lieutenant Governor of the National Capital Territory of Delhi.
2) Whether the petitioner's appointment was legal?
The Court noted that none of the petitioner's appointments against the aforementioned posts received the Lt. Governor's consent and approval, and thus these appointments were per se illegal and void ab initio being in violation of the Rules made under Article 309 of the Constitution, and because non-compliance is at the root of all these illegal appointments.
The Court observed that in the instant case, consultation with the UPSC was required but was not carried out at the time of appointment through absorption of the petitioner to the rank of Joint Secretary and elevation to the post of Secretary, rendering the appointments unlawful.
The Court further stated that the method in which such official on deputation as OSD was transferred, even to a non-existent post, without his being in regular service of the Government is illegal under the law. The petitioner's appointment against a non-existent post and not being appointed to the service, let alone substantive appointment to the service, could not have occurred in the absence of the post.
The Court also held that the petitioner was deputed to the non-existent office of OSD, that after completing his trial period as OSD, he was promptly incorporated into the post of Joint Secretary, and that within a year, he was granted the charge of Secretary with all pay grade upgradations. The appointment was vitiated by fraud and is void ab initio because no consent was obtained from the appropriate authority for such deputations as OSD, absorption to Joint Secretary, and promotion to Secretary.As a result, the Court ruled that the petitioner's appointment is invalid and unconstitutional simply because it was not carried out by the competent Appointing Authority.
3) whether the termination was it just according to the law
The Court stated that when an appointment is declared unlawful ab initio, no enforceable legal right can be accrued to the petitioner on the basis of illegal appointments, and the petitioner cannot demand observance of the same procedure in terminating the service of regularly appointed personnel.Thus, when an appointment is not a legal appointment, the appointee cannot claim the entitlement to the job or the constitutional protection granted by Article 311 of the Indian Constitution.The Court reached the conclusion that if the appointment itself is tainted by fraud, forgery, or illegality, no constitutional rights under Article 311 can be exercised. In such a case, the question is whether the individual is a public servant of the Union at all, and if he is not, the matter falls outside the jurisdiction of Article 311. The veil of protection provided by Article 311 cannot be used if the very entry door into the Union's civil service is barred.
