Writ Petition (Civil) No. 1559 of 1997. Case: Bhagvan Singh Guleria Vs Union of India (UOI) and Ors.. High Court of Delhi (India)
| Case Number | Writ Petition (Civil) No. 1559 of 1997 |
| Counsel | For Appellant: Pramod Ahuja, Adv. And For Respondents: J.P. Sengh, Sr. Adv., Zubeda Begum and Sumeet Batra, Advs. |
| Judges | Dipak Misra, C.J. and Sanjiv Khanna, J. |
| Issue | General Clauses Act - Section 21; All India Services Act, 1951 - Sections 2A, 3, 3(1), 3(2), 4 and 5; All India Services Rule - Rule 4; All India Services Regulation - Regulation 5; Delhi Laws Act, 1912; Indian Administrative Act - Section 3; Civil Procedure Code (CPC) - Section 151 - order 1, Rule 10; Lok Sabha Rules, 1955 - Rules 3, 8 and 9; ... |
| Judgement Date | May 13, 2011 |
| Court | High Court of Delhi (India) |
Judgment:
Sanjiv Khanna, J.
1. The aforesaid writ petitions were heard on different dates, but as similar legal issues and questions arise for consideration, they are being disposed of by this common judgment. The factual aspects of the two cases have been separately discussed and examined below.
2. The two main contentions raised in the writ petitions pertain to interpretation of Article 98 of the Constitution and whether or not Rajya Sabha Secretariat (Recruitment and Conditions of Service) Rules, 1957 and in particular whether Sub-Rule 2 to Rules 4 and 5 suffer from vires of excessive delegation and accordingly whether or not the Rajya Sabha (Method of Recruitment and Qualification for Appointment) Order 1974 and other orders passed by the Chairman, Rajya Sabha are void. Similarly, in the case of v. P Goel the challenge is made to Lok Sabha Secretariat (Recruitment and Conditions of Service) Rules, 1955 and in particular challenge is made to Rules 3, 8 and 9 on the ground of excessive delegation.
3. Article 98 of the Constitution reads as under:
98. Secretariat of Parliament.-(1) Each House of Parliament shall have a separate secretarial staff:
Provided that nothing in this clause shall be construed as preventing the creation of posts common to both Houses of Parliament.
(2) Parliament may by law regulate the recruitment, and the conditions of service of persons appointed, to the secretarial staff of either House of Parliament.
(3) Until provision is made by Parliament under Clause (2), the President may, after consultation with the Speaker of the House of the People 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.
4. Article 98 of the Constitution provides that there shall be a Secretariat staff attached to each House of Parliament to assist the Speaker of the Lok Sabha and the Chairman of Rajya Sabha who are the heads of the two houses of the Parliament. Under the proviso, posts common for both Houses of Parliament are permissible. Article 98(2) postulates that the Parliament by enacting law can regulate recruitment and conditions of service of the persons appointed to the Secretariat staff of each House of Parliament. Till any legislation is enacted by the Parliament, under Clause 3 of Article 98 the President may after consultation with Speaker of the House of the People or the Chairman of the House of Council of States, as the case may be, can make rules regulating the recruitment and conditions of service of persons appointed to the Secretariat of the two Houses. Any Rule so made shall have the effect, subject to the provisions of any enactment made under Clause 2 of Article 98 by the Parliament. Article 98(2) does not mandate that the Parliament must enact legislation within a time frame. Whether, when and what legislation should be enacted is left to the Parliament. Rules made under Article 98(3) cannot be declared as invalid as the Parliament has not legislated.
5. The object and purpose of Article 98 is to ensure that the officers working in the Secretariat enjoy independence and work without interference, or pressure from any quarter except the Constitutional mandate and sanction. Article 98 of the Constitution has been enacted with the object that the Secretariat attached to the Central Legislature should have staff, which is not under the control and influence of the Executive. The effective control should be with the heads of the Lok Sabha and Rajya Sabha.
6. This is clear and apparent if we examine the specific clauses of the Rules, which are subject matter of challenge. The said clauses read as under:
LOK SABHA SECRETARIAT
(RECRUITMENT AND CONDITIONS OF SERVICE)
RULES, 1955
1. xxx
2. xxx
3. Strength and Composition of the Secretariat.-
(1). There shall be in the Secretariat:
(a). such number of permanent posts as are specified in the First Schedule; and
(b). such number of temporary posts of the categories specified in the Second Schedule as the Speaker may by order from time to time sanction:
Provided that no order sanctioning the creation of a temporary post in Group A carrying pay scales exceeding Rs. 2,750/- p.m. shall be issued by the Speaker except after consultation with the Ministry of Finance.
(2). The Speaker may, from time to time, amend the First Schedule by increasing or reducing the number of posts specified therein or by adding thereto any new category of post or posts: Provided that when such amendment relates to a post in Group 'A' carrying pay scales exceeding Rs. 2000/- p.m., no order sanctioning the amendment shall be made by the Speaker except after consultation with the Ministry of Finance.
4. Method of Recruitment.-(1) Recruitment to a post or class of posts may be made by any one of the following methods, namely:-
(a). by promotion of a person employed in the Secretariat;
(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;
(2). The Speaker may, by order, from time to time:
(a). specify the method or methods by which a post or class of posts may be filled;
(b). determine the proportion of vacancies to be filled by each method; and
(c). in case of recruitment by promotion, specify the class of officers who, and the conditions subject to which they, shall be eligible for such promotion.
5. Qualifications for recruitment.-The qualifications for recruitment to any post or class of posts shall be such as the Speaker may, from time to time, by general or special order specify.
6. Appointing authority.-All appointments to posts shall be made by the Speaker:
Provided that the Speaker may, by general or special order, delegate to the Secretary or any other officer of the Secretariat his power to make appointments to any post or class of posts specified in such order, being posts other than posts in Group A.
7. xxx
8. Pay, Leave, Pension and Age of Compulsory Retirement.-Subject to the provisions of Rule 11 -
(a). the pay or scale of pay attached to each of the posts in the Secretariat shall be as set out against it in the Second Schedule;
(b). the rules relating to the grant of leave and pension to officers and the age at which they shall be compulsorily retired from service shall be as set out in the Third and Fourth Schedules;
Provided that the holder of the post of Secretary at the commencement of these rules shall be governed in the matter of pay, leave, pension and age of retirement by the provisions specified in the Fifth Schedule.
(c). the Speaker may, from time to time, by general or special order, after consultation with the Ministry of Finance, amend any provision in the Second, Third and Fourth Schedules.
9. Other conditions of service.-In respect of all other matters regulating the conditions of service of officers for which no provision or insufficient provision has been made in these rules, officers shall be governed by such rules as are applicable to the officers of the corresponding rank in the Central Secretariat, subject to such modifications, variations or exceptions, if any, in such rules, as the Speaker may, after consultation with the Ministry of Finance, by order, from time to time specify.
Explanation.- For the purposes of this rule, the Speaker may, after consultation with the Ministry of Finance, by order, specify the posts in the Central Secretariat which shall correspond to the posts in the Secretariat.
THE RAJYA SABHA SECRETARIAT (RECRUITMENT AND CONDITIONS OF SERVICE) RULES, 1957
1. xxx
2. xxx
3. Strength and composition of the Secretariat -(1) There shall be in the Secretariat: --
(a). Such number of permanent posts as are specified in the First Schedule; and
(b). Such number of temporary posts of the categories specified in the Second Schedule as the Chairman may, from time to time, by order sanction:
Provided that no order sanctioning the creation of a temporary post in Class I above the rank of Under Secretary shall be issued by the Chairman except after consultation with the Ministry of Finance.
(2) The Chairman may, from time to time, amend the First Schedule by increasing or reducing the number of posts specified therein or by adding thereto any new category of post or posts:
Provided that when such amendment relates to a post in Class I or Class II, no order sanctioning the amendment shall be made by the Chairman except after consultation with the Ministry of Finance.
PART II -RECRUITMENT
4. Method of recruitment. - (1) Recruitment to a post or class of posts may be made by one or more of the following methods namely: --
(a). by promotion of a person employed in the Secretariat;
(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.
(2). The Chairman may, from time to time, by general or special order -
(a). Specify the method or methods by which recruitment to a post or class of posts shall be made;
(b). in case of recruitment by more than one such method, determine the proportion of vacancies to the filled by each method; and
(c). in case of direct recruitment, specify the manner in which such recruitment shall be made.
5. Qualifications for appointment - The qualifications required for appointment to the various categories of posts by departmental promotion or otherwise shall be such as the Chairman may, from time to time, by general or special order, specify.
6. Appointing Authority - All appointments to the posts shall be made by the Chairman: Provided that the Chairman may, by general or special order, delegate to the Secretary or any other officer of the Secretariat, his power to make appointments...
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