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TMI Blog1990 (4) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... sets of appeals before us, one arising out of proceedings in the Ministry of Defence, and the other in the Ministry of Railways. The rules governing the former are the Central Civil Services (Classification, Control & Appeal) Rules (hereinafter referred to as "the Civil Services rules") and those governing the latter are the Railway Servants (Discipline and Appeal) Rules (hereinafter referred to as 'the Railway rules'). S/Shri G.B. Pai, Anil Dev Singh, P.A. Choudhary, Madhava Reddy, B. Kanta Rao, A. Subba Rao, A.T.M. Sampath, R.D. Upadhyay and others have argued the matters at length and in great detail and we proceed to dispose of these appeals after considering all the aspects urged before us. We shall take Daniel's case (C.A. Nos. 1210 to 1217 of 1,980) as illustrative of the cases under the Civil Service Rules. Though the employees in these and connected matters are Class III employees of Research Laboratories attached to the Ministry of Defence (shortly referred to as DRDL, DMAL, DERL and DLRL), they are serving in civil posts therein and, hence, governed by the Civil Service Rules. They had been appointed by the Director of the Laboratory. Disciplinar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al order, to do so. The disciplinary authority (D.A.) in the present case, therefore, has to be in terms of rule 12(2)(b), "the appointing authority or the authority specified in the schedule in this behalf". The "authority specified in the schedule in this behalf", admittedly, is the Scientific Adviser to the Government of India. The question next is whether the Director is the "appointing authority" in the case of the respondents. This matter is dealt within Rule 9(1) mad with its proviso which read thus: "9. Appointments to other Services and Posts- (1) All appointments to the Central Civil Services (other than the General Central Service) Class II, Class III and Class IV, shall be made by authorities specified in this behalf in the Schedule." "Provided that in respect of Class III and Class IV civilian services, or civilian posts m the Defence services appointments may be made by officers empowered in this behalf by the aforesaid authorities." The 'appointing authority' specified in the schedule referred to in Rule 9(1), in the case of the respondents, is, again, the Scientific Adviser to the Government of India.. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove categories as he is empowered to appoint the respondents by virtue of the power delegated to him under the proviso to rule 9(1) and as he has also factually appointed them. But, it is said, the Scientific Adviser to the Government of India, notwithstanding his having delegated his power to the Director under the proviso, also continues to be an authority empowered to appoint persons to the posts in question under rule 9(1) read with the schedule. So under the first category of persons indicated above as referred to in rule 2(a) there are two authorities the Scientific Adviser and the Director and under the second category we have the Director. And, here comes the crucial point on which the respondents bank their entire case: the last few words of rule 2(a) make it clear and specific that the expression 'appointing authority' means the highest of the authorities mentioned in sub-clauses (i) to (iv). So, it is said, the 'appointing authority' for purposes of rule 12(2)(b), in the instant case, will be the highest of the three authorities we have referred to above, viz. the Scientific Adviser to the Government of India. In short, it is contended that, by using the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective authorities, and does not need any separate discussion. To turn, next, to the railway cases, we are concerned with appointees to Group C and Group D of the services, which correspond to class III and class IV of the Civil Services. In respect of these persons, the relevant provisions are as follows: "2(1)(a) 'Appointing Authority', in relation to railway servant, means: (i) the authority empowered to make appointments to the service of which the railway servant is, for the time being, a member or to the grade of the Service in which the railway servant is, for the time being, included, or (ii) the authority empowered to make appointments to the post which the Railway servant, for the time being holds, or (iii) the authority which appointed the Railway servant to such Service, grade or post, as the case may be, or (iv) where the Railway servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment under the Ministry of Railways, the authority which appointed him to that service or to any grade in that Service or to that post whichever authority is highest authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom service may be ordered, in the case of a Group C or Group D Railway servant by the appointing authority or authority equivalent in rank or any higher authority and Note 2 to the Schedule mentions that such an authority may also impose any tower penalty. Under rule 275 of the Railway Establishment Code (Vol. I), which deals with the recruitment, training and promotion of Group C and Group D railway servants, the authority competent to make a first appointment is the General Manager or any lower authority to whom he may delegate the power. The General Manager of each Railway has delegated his powers under several heads. One set of the Schedule of Delegation of Powers by the General Manager of the Southern Railway in Establishment Matters has been set out in some detail in the order of the Central Administrative Tribunal (CAT) in the case of Gafoor Mia and Ors. v. Director, DMRL, [1988] 2 CAT 277, (which is one of the orders in appeal before us.) It is neither useful nor necessary to repeat them here in extenso. Here also, the argument is that, notwithstanding the delegation of powers of appointment of Group C and Group D employees to various other zonal officers, the General Mana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or (ii) of clause (a) itself. This decision is therefore not helpful--and certainly not conclusive--to solve the issue arising before us. The same is the position in regard to the decision of this Court in Om Prakash Gupta v. Union, A.I.R. 1975 S.C. 1265 which seems to have been relied on, for the Union, before the CAT. In that case, the appellant was a temporary Government servant not holding a specified post. All that this Court pointed out was that, if the definition in rule 2(a) was not applicable to such a person, the word 'appointing authority', understood in its plain and natural meaning would mean the authority which appointed him--viz. the Director General of the Geological Survey of India. If, on the other hand, the terms of rule 2(a) were applicable--the person empowered to appoint the appellant being one Sri Moghe and the person who appointed him being the Director General--the latter, who was the higher authority, would be the 'appointing authority'. This, again, was an instance of a simple and direct application of the rule, involving no complications as here and cannot be treated as deciding the issue before us. (c) On behalf of the appellant, the U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities' falling under the definitions in sub-clauses (i) to (iv) have to be ascertained and the highest among them taken as the disciplinary authority for purposes of rule 12(2)(b). The above discussion narrows down the controversy before us to a very short issue: Can it be said, where the appointing authority under rule 9(1) has delegated his powers of appointment under the proviso, that both the authorities should be treated as the "authority empowered to appoint" persons to the post, grade or service or does this expression get restricted only to the latter, i.e. the delegatee authority? If both fail under the above description within the meaning of sub-clause (i), the respondent's plea that the definition in rule 2(a) will mark out only the Scientific Adviser/General Manager would be correct. On the other hand, if the second of the above interpretation is correct, the appellant's stand will have to be upheld. Learned counsel for the respondents vehemently contend that the authority specified under the schedule read with rule 9(1) does not lose his authority to appoint merely by the act of delegating his powers to a subordinate authority. Such delegatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l himself. Accepting the principle, we cannot agree with the contention of the learned Counsel that the Director's exercise of the disciplinary power against the petitioners should be treated as an exercise of disciplinary authority by the Scientific Adviser himself. The reason is too simple. Firstly, the statute deals, throughout its provisions, with the disciplinary power as a different and separate power from the power to appoint. Secondly, the disciplinary power is never delegated by the Scientific Adviser to the Director either under Rule 9(1) or any other rule of the CCA Rules. It follows, therefore, that the theory of imputation to the principal the acts of the delegate can have no application to such a situation as the one before us. We, therefore, find that the Roop Chand's case is of no avail to the respondents." Though Sri Choudhary, who appeared before us for the respondents seemed to have second thoughts about this, we are of opinion that the observations extracted above set out the correct position and that the Roop Chand decision is of no help. An attempt has been made before us to invoke the Roop Chand principle in a different way to support the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion whether the appointing authority specified in the schedule can exercise his power of appointment to a post, cadre or service even after he has delegated that power to a subordinate authority under the proviso. An answer to this question in the affirmative is contended for on the strength of certain authorities which may now be considered. In Godawari S. Parulekar v. State of Maharashtra, [1966] 3 SCR 3 14 the appellant had been detained by an order passed by the State Government under rule 30 of the Defence of India Rules. 1t was contended on behalf of the appellant, inter alia, that the State Government had earlier issued a notification delegating its powers under rule 30 to the District Magistrate and was so not competent to make the order of detention in question. Reliance was placed for this argument on the observations of the Judicial Committee in King Emperor v. Shibnath Banerjee, 72 I.A. 241. These observations were distinguished and the above contention was repelled. It was held that by issuing the notification in question, the State Government had not denuded itself of the power to act under r. 30 (vide Willis J. in Huth v. Clarke, [1890] 25 QBD 39 1. Learned counsel a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a local authority concurrently with those delegated to its commits, etc." We do not think it is necessary to go into this question. In view of the decision in Godawari (supra), we shall accept the general proposition that the delegation of the power of appointment under the proviso to rule 9(1) does not necessarily deprive the disciplinary authority specified in the main part of the rule from exercising the delegated power of appointment in any case or class of cases. Still the basic question that remains is, whether, in the context of rule 2(a) read with rule 9(1), the reference to the authority empowered to make the appointment is to the authority mentioned in the proviso to rule 9 or to both the authorities falling under the main part 01' rule 9(1) as well as the proviso. The sheet anchor of the respondent's case is that the expression 'appointing authority' is used in very few of the rules. One of them is rule 12 and there can, therefore, be no valid reason to refuse to apply the definition clause in the context of those rules. It is urged that, by holding the person specified in the schedule also to be the 'appointing authority' as defined in ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les unworkable. On this interpretation, the President will be the only appointing authority under rule 2(a) in all cases, being the highest of the authorities envisaged therein. This cannot clearly be correct. Rule 2(a) does not contemplate any authority other than the one empowered to appoint a person belonging to the post or grade which the concerned government employee holds. In that sense the two parts of clause (i) and clause (ii) are not to be read distributively to ascertain the authority empowered to make appointments (a) to the service (b) to the grade and (c) to the post and consider the highest of them. One has to restrict oneself to the post or grade of the government servant concerned and invoke clause (i) or (ii) as the case may be. Thirdly, the whole purpose and intent of rule 2(a) is to provide that appointing authority means either the de facto or the de jure appointing authority. It will be appreciated that, generally speaking, only the de jure authority can make the appointment but, occasionally, a superior authority or even a subordinate authority (with his consent) could have made the appointment. Again it is possible that the authority empowered to make the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from being exercised by all appointing authorities. Centralisation, it is urged, is the object. This contention is not borne out by the table of innumerable disciplinary authorities set out in the schedule, not to speak of those on whom factual or special powers have been conferred by the President (as was indeed done in many of these very cases later). As against this, Sri Pai, for the appellants pointed out that if one has regard to the strength of the railway staff or the other class III or IV staff employed in various civil services, the interpretation urged on behalf of the respondents would cast an impossible burden of work on the authorities specified in the schedule to whom alone the respondents seek to confine the power to take disciplinary proceedings. There is force in this contention. It has been brought to our notice that notifications have since been issued (for example on 29th August 1979 in the case of the DERL and 2.1.87 in the case of Ordnance factories) by the President under rule 12 empowering certain authorities to exercise disciplinary powers. We need hardly say that any disciplinary proceedings initiated by such authorities from the date when such notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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