Scientific Adviser to the Ministry of Defence and Ors. Vs. S. daniel and Ors. etc.
EmailAppeal: Civil Appeal Nos. 1210 to 1217 of 1980
(From the Judgment and Order dated the 22nd April, 1980 of the Andhra Pradesh High Court in the Writ Appeal Nos 499, 500 to 505 of 1979 and 14 of 1980)
(From the Judgment and Order dated the 22nd April, 1980 of the Andhra Pradesh High Court in the Writ Appeal Nos 499, 500 to 505 of 1979 and 14 of 1980)
Petitioner: Scientific Adviser to the Ministry of Defence and Ors.
Respondent: S. daniel and Ors. etc.
Apeal: Civil Appeal Nos. 1210 to 1217 of 1980
(From the Judgment and Order dated the 22nd April, 1980 of the Andhra Pradesh High Court in the Writ Appeal Nos 499, 500 to 505 of 1979 and 14 of 1980)
(From the Judgment and Order dated the 22nd April, 1980 of the Andhra Pradesh High Court in the Writ Appeal Nos 499, 500 to 505 of 1979 and 14 of 1980)
Judges: RANGANATHAN & K.N. SAIKIA, JJ.
Date of Judgment: Apr 10, 1990
Appearances:
Mr. Anil Dev singh, Mr. G.B. Pai. Mr. k. Madhava Reddy, Mr. P.a. Choudhary, Senior Advocates, Mr. Hemant Sharma, Mr. P.Parmeshwaran, Mr. B. Parthasarthi, Mr. C.V. Subba Rao, Mr. Abbas Naqvi, Mr. R.P. Gupta, Mr.N.K. Nair, Mr. B. Kanta Rao, Mr.Chandra Shekhar Panda, Mr. A.T.M. Sampath, Mr. P.N. Ramalingam, Mr. R.D. Upadhyay, Ms. S. Janani and Mr. A. Subba Rao, Advocates with them for the appearing parties.
Head Note:
SERVICE AND LABOUR LAW
Central Civil Services (Classification, Control & Appeal) Rules:
Rules 2(a), 9, 12 and 13 – Disciplinary proceedings – Authority competent to initiate proceedings – “appointing authority” – Interpretation of Rule 2(a) – Held that rule 2(a) read with rule 9 only envisages the authority to whom the power of appointment has been delegated under rule 9 and not both the delegator and the delegate – Railway Servants (Discipline and Appeal) Rules, Rules 2(1)(a), 2(1)(c), 7 and 8.
Held:
…the basic question … 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 of rule 9(1) as well as the proviso. … We agree with the respondents that the expression ‘appointing authority’ in rule 12 should have the meaning attributed to it in rule 2(a). But what is the real and true interpretation of Rule 2(a)? What does that sub-rule talk of when it refers to a ‘person empowered to make the appointment’ in question? These words clearly constitute a reference to rule 9. Does rule 2(a) refer then to the authority empowered by the schedule to make the appointments or the authority to whom he has delegated that power or both? We think, on a proper and harmonious reading of rules 2(a) and rule 9, that sub-rule (a) of rule 2 only envisages the authority to whom the power of appointment has been delegated under rule 9 and not both the delegator and the delegate. We have come to this conclusion for a number of reasons. In the first place, it is clear, on the plain language of rule 2(a), that it directs the ascertainment of the authorities specified, in such of clauses (i) to (iv) of the rule as may be applicable to a particular case and designates the highest of them as the ‘appointing authority’. It envisages only one authority as falling under each of these clauses and not more. The respondent’s contention which involves interpretation of clause (i) or (ii) as contemplating more than one authority runs counter to the tenor of the rule. Secondly, the strictly literal meaning of rule 2(a) insisted upon by the respondents would render the rules unworkable. For instance, under clause (i), one of the authorities to be considered is the ‘authority empowered to make appointments to the service of which the government servant is for the time being a member’. The respondents belong to one of the Central Civil Services. Though they belong to class III or class IV, there are class I and class II officers as well therein. Rule 8 declares that only the President can make appointments to Class I in the service. If each of the clauses is read as envisaging a plurality of authorities as contended for and if clause (i) is literally interpreted, it will also include the President who is one of the authorities empowered to make appointments to the service of which the concerned employee is a member. This will render the entire gamut of the rules 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 employees 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 appointment at the time when relevant proceedings in contemplation may be higher or lower in rank to the authority which was empowered to make the appointment or which made the appointment at a different point of time. The whole intent or purpose of the definition to safeguard against an infringement of Art.311(1) and ensure that a person can be dealt with only by either a person competent to appoint persons of his class or the person who appointed him, whoever happens to be higher in rank. That rule is not infringed by the interpretation placed by the appellants. The provisions of Schedule II in the case of the Railways which specify the appointing authority or an authority of equivalent rank or any higher authority as the disciplinary authority are also consistent with this interpretation. Fourthly, the interpretation sought to be placed by the respondents on rule 2(a) is artificial and strained. It amounts to saying that a person who is empowered to appoint a government servant (as the Director, DERL, for example, undoubtedly is) and who has also appointed him will not be the appointing authority, because, theoretically, even a more superior authority could have appointed him despite having delegated his authority in this regard to a subordinate. On the contrary, the interpretation urged by the Union will not adversely affect the few employees, if any, who may be appointed by a superior scheduled authority despite delegation of such power to a subordinate authority. For, in such a case, the superior authority would be the person who has factually appointed such an employee and he will clearly be the ‘appointing authority’ by virtue of rule 2(a). Lastly, the interpretation sought for by the Union is consistent with practical consideration. The appointing authority under the Schedule is a high-ranking authority and, in an organisation like the Railways for instance, it will be virtually impossible for him to consider each and every case of appointment of, or disciplinary action against all the Class III or Class IV employees in the organisation. It is indeed this realisation that has rendered necessary delegation of the power of appointment and cannot be ignored, in the absence of compelling reasons, in the matter of disciplinary powers. (Para 15)
Cases Reffered:
1. Gafoor Mia and Ors. v. Director, DMRL, 1988 (2) CAT 277.
2. Ramachandra Rao v. State 1984 (3) SLR 768.
3. Dharam Dev. Union, 1980 (2) SCR 554.
4. Danial’s Case, 1980 (2) SLR 477 (AP).
5. Heckett Engineering Co. v. Workmen, 1978 (1) SCR 693.
6. Chaudhury v. Union, 1977 AISJ 1.
7. Murishwar v. Union, 1976 Service Law Case 82.
8. Union v. Choudhury, 1976 (2) SLR 819.
9. Om Prakash Gupta v. Union, AIR 1975 SC 1265.
10. Godawari S. Parulekar v. State of Maharashtra, 1966 (3) SCR 314.
11. Daluram Pannalal Modi v. Commissioner, 1963 (2) SCR 286.
2. Ramachandra Rao v. State 1984 (3) SLR 768.
3. Dharam Dev. Union, 1980 (2) SCR 554.
4. Danial’s Case, 1980 (2) SLR 477 (AP).
5. Heckett Engineering Co. v. Workmen, 1978 (1) SCR 693.
6. Chaudhury v. Union, 1977 AISJ 1.
7. Murishwar v. Union, 1976 Service Law Case 82.
8. Union v. Choudhury, 1976 (2) SLR 819.
9. Om Prakash Gupta v. Union, AIR 1975 SC 1265.
10. Godawari S. Parulekar v. State of Maharashtra, 1966 (3) SCR 314.
11. Daluram Pannalal Modi v. Commissioner, 1963 (2) SCR 286.
Foreign Cases Referred:
1. Huth v. Clarke, 1890-25 QBD 391.
2. King Emperor v. Shibnath Banerjee, 72 I.A. 241.
JUDGEMENT:
RANGANATHAN, J. :
1. In the Special Leave Petitions, we grant leave and proceed to dispose of all these appeals by a common order. It may be noted that, except in C.A. 3044/89, the Union of India is the appellant.
2. The short common question arising in this large batch of appeals is : who is the authority competent to initiate disciplinary proceedings against the Government servants who are the parties here (hereinafter referred to, for convenience, as ‘the respondents’)? There are two 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 Service rules”) and those governing the latter are the Railway Servants (Discipline and Appeal) Rules (hereinafter referred to as ‘the Railway rules’).
3. 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.
4. We shall take Daniel’s case (C.A. Nos.1210 to 1217 of 1980) 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. Disciplinary proceedings were initiated against them by the Director. There is, therefore, no possibility of any eventual violation of the constitutional prohibition in Article 311 (1) against a Government servant being dismissed or removed from office by an authority subordinate to the appointing authority. Still, the respondents contend that the Director is not competent to initiate disciplinary proceedings against them and that it is only the Scientific Adviser to the Government of India – a higher authority – that can do so. This contention, based on the relevant provisions of the Civil Service Rules, proceeds on the following lines.
5. Rules 12 and 13 of the Civil Service Rules deal with this topic and read as follows:
“12. Disciplinary Authorities – (1) The President may impose any of the penalties specified in rule 11 on any Government servant.
(2) Without prejudice to the provisions of sub-rule (1), but subject to the provisions of sub-rule (4), any of the penalties specified in rule 11 may be imposed on –
(a) xx xx xx
(b) a person appointed to a Central Civil post included in the General Central Service, by the authority specified in this behalf by a general or special order of the President or, where no such order has been made, by the appointing authority or the authority specified in the Schedule in this behalf.
13. Authority to institute proceedings –
(1) The President or any other authority empowered by him by general or special order may –
(a) institute disciplinary proceedings against any Government servant;
(b) direct a disciplinary authority to institute disciplinary proceedings against any Government servant on whom that disciplinary authority is competent to impose under these rules any of the penalties specified in rule 11.
(2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of rule 11 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in clauses (v) to (ix) of rule 11 notwithstanding that such disciplinary authority is not competent under these rules to impose any of the latter penalties.”
In these cases, the disciplinary proceedings have been instituted neither by the President nor by an authority directed by him to do so, nor by any other authority empowered by him, by general or special order, to do so. The disciplinary authority (D.A.) in the present case, therefore, has to be on 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 with Rule 9(1) read 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 the authorities specified in this behalf in the Schedule.”
Provided that in respect of Class III and Class IV civilian services, or civilian services, or civilian posts in the Defence services appointments may be made by officers empowered in this behalf by the aforesaid authorities.”
6. 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. But, by a notification made in exercise of the power conferred by the proviso, he had authorised the Director to make appointments to Class III and Class IV posts in his establishment and, it is common ground, the Director had appointed the respondents in exercise of that power. In other words, there is no dispute that the Director is the “appointing authority” of the respondents not only in the sense that he was empowered to appoint them under rule 9 but also in the sense that he actually made these appointments. Nevertheless, it is said, he is not the ‘appointing authority’ in the case of the respondents within the meaning of rule 12(2)(b). In support of this argument, attention is drawn to rule 2 which contains the definitions of various expressions for the purposes of the rules which will be applicable in the absence of anything to the contrary in the relevant context. Rule 2(a) reads:
“(a) ‘appointing authority’ in relation to a Government servant means –
(i) the authority empowered to make appointments to the Service of which the Government servant is for the time being a member or to the grade of the service in which the Government servant is for the time being included, or
(ii) the authority empowered to make appointments to the posts which the Government servant for the time being holds, or
(iii) the authority which appointed the Government servant to such Service, grade or post, as the case may be, or
(iv) where the Government servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which appointed him to that Service or to any grade in that Service or to that post
Whichever authority is the higher authority.”
It will be noticed that this clause refers to two classes of persons : (a) the authority empowered to make appointments to the service, grade or post with which we are concerned – sub clause (i) and (ii) – and (b) the authority who actually appointed the Government servant to the service, grade or post in question – sub clauses (iii) and (iv). Each of these is sub-divided into two categories but we need not, for the purposes of the present cases, bother about this sub-division. Stopping here, it will be seen, as pointed out already, that the Director falls under both the above categories as he is empowered to appoint the respondents by virtue by 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 last few significant words in rule 2(a), the Civil Rules seek to ensure that, though the power to appoint persons to a particular post, grade or service may be delegated under the proviso to rule 9(1), such delegation should not extend to the exercise of disciplinary powers. It is the clear intention of the rule-makers, it is argued, that disciplinary powers should continue to vest in the appointing authority mentioned in the schedule read with rule 9(1) and should not be allowed to be exercised by his delegate under the proviso. The emphasis, it is said, is not on the person who has made, or is empowered to make, the appointment of the particular civil servant in question; it is on the person who makes, or is empowered to make, appointment of persons generally to the post, grade or service to which the civil servant in question belongs. It is, therefore, urged that though one Class III servant in the laboratory may be appointed by the Director and another by the Scientific Adviser (who can make such appointment despite the delegation), the disciplinary authority for both and, indeed for all class III servants in the Laboratory, must be the same and cannot be different. This interpretation of rule 2(a), it is said, is not only quite plain on the language used but has also received the approval of this Court in Dharam Dev Vs. Union (1980-2 S.C.R. 554). Further force is sought to be lent to the argument by pointing out that the expression ‘appointing authority’ is used only in rules 2, 10, 12 and 24 of, and the schedule to, the Civil Service rules and that, to refuse to give effect to the definition for purposes of rule 12 is to render the definition clause virtually otiose. This plea was upheld by the Andhra Pradesh High Court in Daniel’s case (1980-2 S.L.R. 477) and, following it, in the other cases before us. A similar view has been taken in the Delhi High Court in Murishwar v. Union (1976 Service Law Cases 82), in Union v. Tarlok Singh (cited therein), and by the Calcutta High Court in Union v. Choudhury (1976-2 S.L.R. 819). But a contrary view has been taken by the M.P. High Court in Chaudhury v. Union (1977 All India Services Journal 1) and by the Andhra Pradesh High Court in W.A. 793/83 and W.P. 2441/79.
7. The position in respect of ordnance factories which has to be considered in some of the cases is identical, except for the nomenclatures of the respective authorities, and does not need any separate discussion.
8. 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 authority”.
“2(1)(c) ‘Disciplinary Authority’ means
(i) in relation to the imposition of a penalty on a Railway Servant, the authority competent, under these rules, to impose on him that penalty;
(ii) in relation to rule 9 and clauses (a) and (b) of sub-rule (1) of Rule 11 in the case of any Gazetted Railway servant, an authority competent to impose any of the penalties specified in rule 6.
(iii) in relation to rule 9 in the case of any non-gazetted Railway servant, an authority competent to impose any of the major penalties specified in rule 6;
(iv) in relation to clauses (a) and (b) of sub-rule (1) of Rule 11, in the case of a non-gazetted Railway servant, an authority competent to impose any of the penalties specified in Rule 6″.
“7. Disciplinary authorities.
(1) The President may impose any of the penalties specified in Rule 6 on any Railway Servant.
(2) Without prejudice to the provisions of sub-rule (1), any of the penalties specified in Rule 6 may be imposed on a Railway servant by the authorities as specified in Schedules I, II and III.
(3) The disciplinary authority in the cases of a Railway Servant officiating in a higher post, shall be determined with reference to the officiating post held by him at the time of taking action”.
“8. Authority to institute proceeding. –
(1) The president, or any other authority empowered by him, by general or special order, may –
(a) institute disciplinary proceedings against any Railway servant;
(b) direct a disciplinary authority to institute disciplinary proceedings against any Railway servant on whom that disciplinary authority is competent to impose, under these rules, any of the penalties specified in rule 6.
(2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of Rule 6 may, subject to the provisions of clause (c) of sub-rule (1) of rule 2, institute disciplinary proceedings against any Railway servant for imposition of any of the penalties specified in clauses (v) to (ix) of rule 6, notwithstanding that such disciplinary authority is not competent under these rules, to impose any of the latter penalties”.
Schedule II referred to in rule 7(2) lays down that an order of compulsory retirement, removal or dismissal from 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 of any higher authority and Note 2 to the Schedule mentions that such an authority may also impose any lower 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. Vs. 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 Manager has not divested himself of the power to make such appointments and continues to be the ‘appointing authority’. Being the highest among the various appointing authorities, he alone stands vested with the power to institute disciplinary proceedings and impose penalties. It is, therefore, submitted that the disciplinary proceedings, in the cases under this batch, initiated by the Divisional Superintendent and like officers were without jurisdiction and were rightly quashed by the CAT in Gafoor Mia’s case, already referred to, and the decisions in the other matters before us following the said decision.
1. In the Special Leave Petitions, we grant leave and proceed to dispose of all these appeals by a common order. It may be noted that, except in C.A. 3044/89, the Union of India is the appellant.
2. The short common question arising in this large batch of appeals is : who is the authority competent to initiate disciplinary proceedings against the Government servants who are the parties here (hereinafter referred to, for convenience, as ‘the respondents’)? There are two 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 Service rules”) and those governing the latter are the Railway Servants (Discipline and Appeal) Rules (hereinafter referred to as ‘the Railway rules’).
3. 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.
4. We shall take Daniel’s case (C.A. Nos.1210 to 1217 of 1980) 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. Disciplinary proceedings were initiated against them by the Director. There is, therefore, no possibility of any eventual violation of the constitutional prohibition in Article 311 (1) against a Government servant being dismissed or removed from office by an authority subordinate to the appointing authority. Still, the respondents contend that the Director is not competent to initiate disciplinary proceedings against them and that it is only the Scientific Adviser to the Government of India – a higher authority – that can do so. This contention, based on the relevant provisions of the Civil Service Rules, proceeds on the following lines.
5. Rules 12 and 13 of the Civil Service Rules deal with this topic and read as follows:
“12. Disciplinary Authorities – (1) The President may impose any of the penalties specified in rule 11 on any Government servant.
(2) Without prejudice to the provisions of sub-rule (1), but subject to the provisions of sub-rule (4), any of the penalties specified in rule 11 may be imposed on –
(a) xx xx xx
(b) a person appointed to a Central Civil post included in the General Central Service, by the authority specified in this behalf by a general or special order of the President or, where no such order has been made, by the appointing authority or the authority specified in the Schedule in this behalf.
13. Authority to institute proceedings –
(1) The President or any other authority empowered by him by general or special order may –
(a) institute disciplinary proceedings against any Government servant;
(b) direct a disciplinary authority to institute disciplinary proceedings against any Government servant on whom that disciplinary authority is competent to impose under these rules any of the penalties specified in rule 11.
(2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of rule 11 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in clauses (v) to (ix) of rule 11 notwithstanding that such disciplinary authority is not competent under these rules to impose any of the latter penalties.”
In these cases, the disciplinary proceedings have been instituted neither by the President nor by an authority directed by him to do so, nor by any other authority empowered by him, by general or special order, to do so. The disciplinary authority (D.A.) in the present case, therefore, has to be on 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 with Rule 9(1) read 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 the authorities specified in this behalf in the Schedule.”
Provided that in respect of Class III and Class IV civilian services, or civilian services, or civilian posts in the Defence services appointments may be made by officers empowered in this behalf by the aforesaid authorities.”
6. 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. But, by a notification made in exercise of the power conferred by the proviso, he had authorised the Director to make appointments to Class III and Class IV posts in his establishment and, it is common ground, the Director had appointed the respondents in exercise of that power. In other words, there is no dispute that the Director is the “appointing authority” of the respondents not only in the sense that he was empowered to appoint them under rule 9 but also in the sense that he actually made these appointments. Nevertheless, it is said, he is not the ‘appointing authority’ in the case of the respondents within the meaning of rule 12(2)(b). In support of this argument, attention is drawn to rule 2 which contains the definitions of various expressions for the purposes of the rules which will be applicable in the absence of anything to the contrary in the relevant context. Rule 2(a) reads:
“(a) ‘appointing authority’ in relation to a Government servant means –
(i) the authority empowered to make appointments to the Service of which the Government servant is for the time being a member or to the grade of the service in which the Government servant is for the time being included, or
(ii) the authority empowered to make appointments to the posts which the Government servant for the time being holds, or
(iii) the authority which appointed the Government servant to such Service, grade or post, as the case may be, or
(iv) where the Government servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which appointed him to that Service or to any grade in that Service or to that post
Whichever authority is the higher authority.”
It will be noticed that this clause refers to two classes of persons : (a) the authority empowered to make appointments to the service, grade or post with which we are concerned – sub clause (i) and (ii) – and (b) the authority who actually appointed the Government servant to the service, grade or post in question – sub clauses (iii) and (iv). Each of these is sub-divided into two categories but we need not, for the purposes of the present cases, bother about this sub-division. Stopping here, it will be seen, as pointed out already, that the Director falls under both the above categories as he is empowered to appoint the respondents by virtue by 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 last few significant words in rule 2(a), the Civil Rules seek to ensure that, though the power to appoint persons to a particular post, grade or service may be delegated under the proviso to rule 9(1), such delegation should not extend to the exercise of disciplinary powers. It is the clear intention of the rule-makers, it is argued, that disciplinary powers should continue to vest in the appointing authority mentioned in the schedule read with rule 9(1) and should not be allowed to be exercised by his delegate under the proviso. The emphasis, it is said, is not on the person who has made, or is empowered to make, the appointment of the particular civil servant in question; it is on the person who makes, or is empowered to make, appointment of persons generally to the post, grade or service to which the civil servant in question belongs. It is, therefore, urged that though one Class III servant in the laboratory may be appointed by the Director and another by the Scientific Adviser (who can make such appointment despite the delegation), the disciplinary authority for both and, indeed for all class III servants in the Laboratory, must be the same and cannot be different. This interpretation of rule 2(a), it is said, is not only quite plain on the language used but has also received the approval of this Court in Dharam Dev Vs. Union (1980-2 S.C.R. 554). Further force is sought to be lent to the argument by pointing out that the expression ‘appointing authority’ is used only in rules 2, 10, 12 and 24 of, and the schedule to, the Civil Service rules and that, to refuse to give effect to the definition for purposes of rule 12 is to render the definition clause virtually otiose. This plea was upheld by the Andhra Pradesh High Court in Daniel’s case (1980-2 S.L.R. 477) and, following it, in the other cases before us. A similar view has been taken in the Delhi High Court in Murishwar v. Union (1976 Service Law Cases 82), in Union v. Tarlok Singh (cited therein), and by the Calcutta High Court in Union v. Choudhury (1976-2 S.L.R. 819). But a contrary view has been taken by the M.P. High Court in Chaudhury v. Union (1977 All India Services Journal 1) and by the Andhra Pradesh High Court in W.A. 793/83 and W.P. 2441/79.
7. The position in respect of ordnance factories which has to be considered in some of the cases is identical, except for the nomenclatures of the respective authorities, and does not need any separate discussion.
8. 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 authority”.
“2(1)(c) ‘Disciplinary Authority’ means
(i) in relation to the imposition of a penalty on a Railway Servant, the authority competent, under these rules, to impose on him that penalty;
(ii) in relation to rule 9 and clauses (a) and (b) of sub-rule (1) of Rule 11 in the case of any Gazetted Railway servant, an authority competent to impose any of the penalties specified in rule 6.
(iii) in relation to rule 9 in the case of any non-gazetted Railway servant, an authority competent to impose any of the major penalties specified in rule 6;
(iv) in relation to clauses (a) and (b) of sub-rule (1) of Rule 11, in the case of a non-gazetted Railway servant, an authority competent to impose any of the penalties specified in Rule 6″.
“7. Disciplinary authorities.
(1) The President may impose any of the penalties specified in Rule 6 on any Railway Servant.
(2) Without prejudice to the provisions of sub-rule (1), any of the penalties specified in Rule 6 may be imposed on a Railway servant by the authorities as specified in Schedules I, II and III.
(3) The disciplinary authority in the cases of a Railway Servant officiating in a higher post, shall be determined with reference to the officiating post held by him at the time of taking action”.
“8. Authority to institute proceeding. –
(1) The president, or any other authority empowered by him, by general or special order, may –
(a) institute disciplinary proceedings against any Railway servant;
(b) direct a disciplinary authority to institute disciplinary proceedings against any Railway servant on whom that disciplinary authority is competent to impose, under these rules, any of the penalties specified in rule 6.
(2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of Rule 6 may, subject to the provisions of clause (c) of sub-rule (1) of rule 2, institute disciplinary proceedings against any Railway servant for imposition of any of the penalties specified in clauses (v) to (ix) of rule 6, notwithstanding that such disciplinary authority is not competent under these rules, to impose any of the latter penalties”.
Schedule II referred to in rule 7(2) lays down that an order of compulsory retirement, removal or dismissal from 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 of any higher authority and Note 2 to the Schedule mentions that such an authority may also impose any lower 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. Vs. 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 Manager has not divested himself of the power to make such appointments and continues to be the ‘appointing authority’. Being the highest among the various appointing authorities, he alone stands vested with the power to institute disciplinary proceedings and impose penalties. It is, therefore, submitted that the disciplinary proceedings, in the cases under this batch, initiated by the Divisional Superintendent and like officers were without jurisdiction and were rightly quashed by the CAT in Gafoor Mia’s case, already referred to, and the decisions in the other matters before us following the said decision.
