Sanjeev Sirohi
Published on: 30 December 2022 at 19:22 IST
While spelling out exactly as to who is the appropriate appointing authority for the appointment of Secretary of Delhi Legislative Assembly, the Delhi High Court in a most notable judgment titled Siddharth Rao vs The Govt of NCT of Delhi & Ors in W.P.(C) 3522/2014 that was pronounced as recently as on December 23, 2022 has minced just no words to hold that for the appointment of Secretary to the Delhi Legislative Assembly (DLA), the Lieutenant Governor is the appropriate appointing authority and not the Speaker of the House.
It merits mentioning that the Single Judge Bench of Hon’ble Mr Justice Chandra Dhari Singh held clearly that, “After having analyzed the constitutional provisions, it is concluded that appointments to the position of Secretary, DLA fall outside the purview of the office of Speaker, DLA who, to the most, could have a say to the extent of being consulted and even not that of his concurrence.
The appropriate Appointing Authority is the Lt. Governor of the NCT of Delhi.” Very rightly so!
At the very outset, this noteworthy judgment authored by the Single Judge Bench of the Delhi High Court comprising of Hon’ble Mr Justice Chandra Dhari Singh sets the ball in motion by first and foremost putting forth in para 1 that, “The instant Civil Writ Petition has been filed on behalf of the petitioner under Article 226 of the Constitution of India praying inter alia as under:
“a) quashing the impugned order dated 06.12.2013 passed by respondent no. 1&2 thereby terminating Petitioner from his service and holding all his appointments in Delhi Legislative Assembly illegal and also order dated 17.05.2010 thereby relieving the petitioner from the post of secretary, Delhi Legislative Assembly; and
b) Issue appropriate writ of mandamus thereby directing the respondents to forbear from acting upon the impugned order dated 17.05.2010 and 06.12.2013, and to treat petitioner as having continued in services throughout and to pay his salary and allowances and to give all other consequential benefits of continuity in service treating the said orders as non-est.””
FACTUAL MATRIX
To put things in perspective, the Bench then envisages in para 2 that, “The matter has arisen out of the facts as detailed hereunder:
a. Petitioner was employed as Publicity Officer with SSB/Central Secretariat, Directorate General of Security, R.K. Puram, Delhi.
b. On 16.12.1998, the then Speaker of Delhi Legislative Assembly (hereinafter referred as “DLA”) wrote to Secretary Services, Delhi Government, recommending that the services of the petitioner may be obtained on deputation. Pursuant to which the Petitioner was appointed as Officer on Special Duty (hereinafter referred to as “OSD”) to the Speaker.
c. The Speaker, vide letter dated 29.12.1998, wrote to Secretary, Cabinet Secretariat for services of petitioner on deputation. Accordingly, the Cabinet Secretariat relieved the petitioner to join DLA on 31.12.1998.
d. The petitioner joined DLA as Joint Secretary (LA) on 01.01.1999 and on 25.02.1999, vide letter No. 18- A(1)/99-LAS(Estt.)/1376/84, terms and conditions of deputation against the post of Joint Secretary was issued upon sanction of Lieutenant Governor (hereinafter referred to as “Lt. Governor”). Consequently, the pay of petitioner was fixed by DLA Secretariat vide order dated 22.03.1999 in the pay scale of 12,000-375-16,500 wef 01.01.1999.
e. On 21.08.2001, the Speaker, DLA requested the Prime Minister to transfer the petitioner permanently in DLA. Subsequently, on 21.10.2001, the Cabinet Secretariat conveyed to DLA of cadre clearance of Ministry of Home Affairs for permanent absorption of the petitioner.
f. On completion of deputation period on 31.12.2001, petitioner was permanently absorbed in DLA vide order dated 07.11.2001 of the DLA Secretariat. The name of the petitioner was struck off from his parent cadre with the approval of Ministry of Home Affairs consequent to his permanent absorption in DLA.
g. On 05.04.2002, terms and conditions of the permanent absorption of the petitioner as Joint Secretary (LA) was settled by Ministry of Home Affairs.
h. On 13.11.2002, opinion was sought by Speaker, DLA from Lok Sabha to promote the petitioner to the post of Secretary. On 02.12.2002, the Lok Sabha Secretary General opined that corresponding to the view that executives should have no direct control over the recruitment and conditions of service of the employees of the secretariat. However, the letter imposed the discretion on the Speaker, DLA to take the final view.
i. On 02.12.2002, the petitioner was promoted as Secretary.
j. The petitioner was relieved from services on 17.05.2010, and was terminated from the services on 06.12.2013.
k. The said order of termination has been challenged herein on the grounds of want of compliance to Principles of Natural Justice and the lack of competence of the authority.”
Most significantly, the Bench minces no words to hold in para 73 that, “In the instant case, after having analysed the constitutional provisions, it is concluded that appointments to the position of Secretary, DLA fall outside the purview of the office of Speaker, DLA who, to the most, could have a say to the extent of being consulted and even not that of his concurrence. The appropriate Appointing Authority is the Lt. Governor of the NCT of Delhi.”
While not leaving even an iota of doubt, the Bench then observes in para 75 that, “Having answered the above, the next issue that arises for adjudication is whether the appointment of the petitioner was legal.
As is evident form a perusal of the record, and as averred by the respondents, in none of the appointments of petitioner against the abovementioned posts, the Lt. Governor’s consent and approval for such appointment was obtained and therefore, these appointments were per se illegal and void ab-initio being in violation of the Rules made under Article 309 of the Constitution and also because the non-compliance goes to the root of all these illegal appointments.”
Most remarkably, the Bench then points out in para 78 that, “It is also a settled position of law that appointments made without following the due process or rules for appointment do not confer any right on the appointee. Unless the appointment is in terms of the relevant rules and after a proper competition amongst qualified persons, the same would not confer any right on the appointee.
For regular vacancies to be filled up, regular process of recruitment must be followed in compliance with the constitutional scheme. The mandate of Article 309 of the Constitution of India has been flouted in all the appointments of petitioner in the DLA Secretariat and this infirmity goes to the root of all these appointments.
It cannot be glossed over that the Bench notes in para 86 stating that, “The record reveals that the then Speaker approved the proposal at his own level, though there were no Recruitment Rules in existence for the post of Joint Secretary nor any consultation with UPSC was carried out which is the constitutional body and consultation with which is mandated under Article 320 of the Constitution.
The consent and approval of Lt. Governor, who is the Appointing Authority was also not obtained. Thereafter, orders of permanent absorption were issued by the then Secretary, DLA Secretariat on 07.11.2001, stipulating that the petitioner will stand permanently absorbed on completion of his deputation on 31.12.2001.
Once again, copies of this order were neither endorsed to the Lt. Governor, or to the Services Department or to the Legislative Affairs Department of the Government of NCT of Delhi to ensure that the illegalities of this appointment are not brought to the notice of the Departments/Government including the cadre controlling Department of Legislative Affairs.”
Most forthrightly, the Bench then minces just no words to hold in para 112 that, “The entire saga of the series of appointments, absorption and promotion of the petitioner is tainted with irregularities and illegalities, de-hors the rules or due process of law, without approval by the competent authority and is vitiated. In view of the irregularities and illegalities therein, Show Cause Notices were invoked against him as ordered by the Lt. Governor being the appropriate appointing authority and even the opportunity of being heard was granted to the petitioner.
Even after having received the Show Cause Notices about his misconduct, the petitioner neither disputed nor gave any explanation to defend himself. Hence, the service of the petitioner was rightly terminated by the competent authority, i.e., the Lt. Governor.”
CONCLUSION
Most of all, the Bench while taking a very balanced stand held in para 113 that, “In view of the aforesaid analysis, it is evident that the appointment of the petitioner is in the teeth of law and cannot be saved. Still for the sake of argument, even if the termination order is tested on the anvil of violation of Principles of Natural Justice, there are documents on record to establish that the petitioner was granted ample opportunities by way of replying to the Show Cause Notice as well by way of personal hearings granted to him, which he chose to turn a blind eye and a deaf ear to. Therefore, the petitioner’s termination cannot be termed as illegal.”
As a corollary, the Bench then mandates in para 114 holding that, “Hence, in light of the foregoing discussion and analysis, there are no cogent reasons to entertain the petition and allow the prayers sought therein.”
Finally, the Bench then concludes by holding in para 115 that, “In the aforesaid terms, the instant petition stands dismissed.”
All told, we thus see for ourselves that the Delhi High Court has made it indubitably clear that Lt Governor is the appropriate appointing authority for the appointment of Secretary of Delhi Legislative Assembly and not the Speaker of the House.
If appointment is not made properly and if correction is not done in time then we see that the Delhi High Court does not entertain the petition and it gets dismissed as we see in this leading case! There should be just no doubt now on this and what the Delhi High Court has so elegantly expounded must be followed in letter and spirit. No denying it!
Sanjeev Sirohi, Advocate
Views are Personal