TMI Blog2009 (7) TMI 1348X X X X Extracts X X X X X X X X Extracts X X X X ..... A. Writ Petition No. 3568 of 2009 had been filed at Aurangabad Bench of this High Court, while Writ Petition Lodging No. 63 of 2009 has been filed at the Principal Bench. Vide order dated 17th June, 2009, both these Petitions were ordered to be listed and heard together as common question of law is raised in these Petitions and somewhat common reliefs are sought. Thus, by this judgment, we will dispose of both the Petitions together. 3. The Petitioners in both these Petitions claim to be public spirited persons, one is a Journalist and Social Worker, while the other was Social Journalist in the past and is Lawyer at present and both of them, in the past, have taken up various issues of public importance by filing public interest litigations in the Courts. Shri Johny Joseph, the Chief Secretary of the State of Maharashtra is stated to have attained the age of 60 years on 29th May, 2009, his date of birth being 29th May, 1949. Upon attaining that age, he would superannuate from the service on 30th May, 2009. However, the Union of India upon recommendation of the State of Maharashtra through the Principal Secretary, General Administrative Department, Mantralaya, Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and approval of the Central Government is unreasoned without basis and is made in undue haste. Relying upon the judgment of the Division Bench of this Court in R.R. Tripathi's case (supra), it is contended that the action of the State and the Union of India is discriminatory and arbitrarily. 6. The Respondents produced the original records in the Court being the file containing the noting and decisions resulting in the passing of extension order in favour of the private Respondent and argued that there is hardly any challenge to the Notification issued by the Central Government adding Third Proviso to Rule 16 as the Notification itself opens with the words the Central Government, after consultation with the Government of the States concerned hereby makes the following rules to amend the All India Services (Death Cum Retirement Benefits) Rules, 1958. 7. Thus, the Notification is neither bad in law nor suffers from element of discrimination. According to the Respondents, there is full justification for and public interest is served by giving extension to the Chief Secretary. The decision being for valid reason and free of arbitrariness would fall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of R.R. Tripathi (Supra), while relying upon different paragraphs of the said judgment. According to the Respondents, they have fully satisfied the criteria and principles stated in the judgment while according to the Petitioners there is a glaring violation of the principles stated therein and extension granted to the Respondents is arbitrary and unfair. In that case, the Court was concerned with the grant of extension to Dr. P.S. Pasricha, Director General of Police, Maharashtra State, and Shri D.N. Jadhav, Commissioner of Police, Mumbai. The State Government had claimed that keeping in view their service profiles and for the purposes of setting up police establishment Board and State Security Commission, the services of those Respondents were necessary in public interest. Both those officers were to retire from service on 30th November, 2007 upon attaining the age of superannuation. The Home Department of the State of Maharashtra had sent a proposal to the Ministry of Home Affairs, New Delhi, for approval of the Central Government for extension of their service which was granted. These extensions were challenged on the ground that they were contrary to the Rule 16(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n service whose the age of 60 years except in very special circumstances. Explanation. For the purpose of this Sub-rule, a member of the Service whose date of birth falls on the 1st day of any month shall have attained the age of fifty eight years on the afternoon of the last day of the preceding month. Explanation. For the purpose of this Sub-rule, a member of the Service whose date of birth falls on the 1st day of May, 1998 and is on extension in service, shall retire from the service on the expiry of his extended period of service or on the expiry of any further extension granted by the Central Government in public interest, and that on such extension in service shall be granted beyond the age of sixty years.] (2) A member of the Service may, after giving at least three months previous notice in writing, to the State Government concerned, retire from service on the date on which such member completes thirty years of qualifying service on the date on which such member attains fifty years age or on any date thereafter to be specified in the notice; Provided that no member of the Service under suspension shall retire from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a State Government was provided. 12. By notification dated 12th June, 2006, Sub-rule (1A) has been inserted which reads thus: (1A) Notwithstanding anything contained in Sub-rule (1), the Central Government may, if it considers necessary in the public interest to do so, give extension in service to the incumbents of the posts of the Cabinet Secretary, Defence Secretary, Home Secretary, Director, Intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation for such period as it may deem proper: Provided that the total term of the Cabinet Secretary who is granted such extensions of service shall not exceed three years; Provided further that the total term of the other Secretaries and Directors who are granted such extensions of service under these Rules shall not exceed two years. A. Section 3 of the All India Services Act, 1951 also empowers the Central Government to make rules for regulation of recruitment and conditions of service of persons appointed in service after consultation with the Government of the State concerned. Subsection (1A) further extends this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to whom these rules are applicable but not beyond the prescribed period specified under these rules. 14. Besides this specific provision, the Central Government has the power to relax the rigours of any rule or regulation in exercise of the powers vested in it under Rule 3 of the All India Services (Conditions of Service Residuary Matters) Rules, 1960. The very heading and object of these rules is to deal with the residuary matter which are not specifically dealt with or provided for under other rules. Where the Central Government is satisfied that operation of any rule made or deemed to have been made in regulation causes undue hardship in any particular case, it may order to dispense with or relax the requirement of the rules or regulations to such an extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. This rule on its plain reading is to receive a liberal construction. The rule has been worded so widely as to cover unspecified situations. It is a basic rule of service jurisprudence that no rule or provision may comprehend and contemplate all possible situations which may aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel appearing for the petitioners, the Central Government hardly has the power to grant extension particularly in the facts of the present case. This contention is based upon misconception of the relevant rules and is opposed to the basic concept of service jurisprudence. The rules are to be framed by the Central Government. Thus, the Government, in any case, would have the powers to frame such rules or to pass such orders as may be called for in the facts and circumstances of a given case but certainly not contrary to the provisions of the Act or the Rules framed there under. The residuary powers vested to meet extraordinary situations which have not been specifically provided for in the Rules cannot be circumvented or limited and it must be left to the authorities to exercise their powers objectively and in consonance with the spirit of the Rules. Besides the power to extend, power to relax the rule in its absolute term to a given case and to remove hardship or otherwise is clear indication of the powers of the rule framing authority and there should not be unnecessary embargoes upon the exercise of such powers. We may refer to the language of Rule 3 which clearly says that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is, no doubt, true that under Section 21 of the Act, the State Government is required to make rules prescribing the conditions under which members of the staff requiring professional skill could be appointed by the Trust. But when the State Government has not made any such rules even if the rules can be held to be of mandatory nature as has been held by the High Court, then it is difficult to comprehend that the Board is denuded of its general power of appointing and promoting people to different posts as provided under Section 22 of the Act. If the view of the High Court under the impugned judgment is taken to be correct then all appointments to different posts ever since 1936 have to be held to be invalid inasmuch as no rules have been framed by the State Government in exercise of the power under Section 21 of the Act. While interpreting the provisions of Section 21 of the Act, the High Court has lost sight of the general principle of service jurisprudence that in the absence of any statutory rules governing the service conditions of the employees, the executive instructions and/or decisions taken administratively would operate in the field and appointments/promotions can be m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irement benefits pertain to the realm of conditions of service of a Government servant and cannot be disassociated therefrom. The only contention necessitated by exigencies of the case is that extension of service of a Government servant is not a condition of service. xx xx xx xx 27. The public interest is a term of wide magnitude and covers within its ambit efficiency, exigencies of service and interest of the public at large. These are some of the relevant considerations which the executive authorities are required to take into consideration before arriving at a final decision. Absence of any reasons or valid reasons would be a ground which would attract the scrutiny by courts. In the case of Hochtief Gammon v. State of Orissa (1975)IILLJ418SC , the Supreme Court held as under. The Executive have to reach their decision by taking into account relevant considerations. They should not refuse to consider relevant matter nor should they take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The courts have power to see that the Executive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he grounds upon which administrative action is subject to control by Judicial review. The first ground I would call illegality', the second irrationality' and the third procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of proportionality', which is recognised in the administrative law of several of our fellow members of the European Economic Community..... Lord Diplock explained irrationality' as follows: By irrationality, I mean what can now be succinctly be referred to as Waynesburg unreasonableness'.... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. xx xx xx 45. Proper analysis of the factual matrix of the case and the principles of law stated supra, would lead us to only one conclusion that the orders dated 30th November, 2007 are not reasoned, rational and are als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of judicial review by Courts. The Supreme Court in this case stated that there is nothing paradoxical in imposing legal limits on such authorities by courts in administrative matters including contractual matters as the whole concept of unfettered discretion is inappropriate to a public authority and the power is to be exercised in good faith. The Court held as under: 17. It is true that by way of judicial review the Court is not expected to act as a court of appeal while examining an administrative decision and to record a finding whether such decision could have been taken otherwise in the facts and circumstances of the case. In the book Administrative Law, Prof. Wade has said: The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly, merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tates have not been consulted by the Central Government much less placing some material documents on record in support of this averment. Even the averments are vague and are so general in nature that in law it would be difficult to determine the controversy raised by such averments. 17. As noticed above, the said Notification opens with the words which would raise a presumption in favour of the Notification that it was issued after consultation with the States. In Section 3 of the All India Service Act, 1951, it is specifically provided that the Central Government may after consultation with Government of the States concerned make Rules for regulation of recruitment and conditions of service of the persons appointed to All India Service. Thus, Central Government is competent to frame Rules relating to all matters and conditions of service of the members of the All India Service and the Notification adding amended third proviso to Rule 16(1) complies with the requirements of Section 3 and the presumption in its favour has not been rebutted by the Petitioner. The onus to show that the Notification was issued without proper consultation was upon the Petitioners. Except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gratuity or pension. Sub-rule (1) thereof provides for retirement from service and states that a member shall retire with effect from the afternoon of the last day of the month in which he attains the age of 60 years. In this matter we are concerned with third proviso, viz., extension of service in case of a member of service holding the post of Chief Secretary. 21. Apart from the fact that both conditions stipulated in the third proviso have to be complied with, it must be stated that the normal rule of retirement from service on attaining the age of retirement viz., 60 years in this case is the rule and the proviso are in the nature of execution. The apprehension of the petitioner that exception will become the rule is in this case without any foundation or basis. However, it is necessary to bear in mind that continuation in service beyond the age of superannuation by giving an extension cannot become rule, if the rule in question in its entirety is perused together with the other rules. 22. It is also clear from the third proviso itself that it is applicable only to the persons in service who are holding the post of Chief Secretary of a State Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and after it gets approval from Central Government, the order of extension of service would be issued. The emphasis in the rule is on full justification and in public interest . The expression full justification has to be given its correct and appropriate meaning. The Justification so given should also satisfy that the proposal is in public interest. Both these ingredients must be satisfied independently as their existence is a condition precedent to the approval by the Central Government. The Black's Law Dictionary (Eighth Edition) explains the word justification as: a lawful or sufficient reason for one's acts or omissions, any fact that prevents an act from being wrongful. 25. The expression full justification thus requires that it has to be a justification in fact and in law. It should be a clear case of justification in contra distinction to imperfect justification, that is to say that justification should be work and need based. The requirement of the State Government should fully substantiate that the continuation of member of the service in service by way of limited extension is the need' of the State and is also ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate. 29. In the case of Meerut Development Authority v. Association of Management Studies and Anr. (2009) 6 SCC 171 the Supreme Court held as under: 67. The expression public interest if it is employed in a given statute is to be understood and interpreted in the light of the entire scheme, purpose and object of the enactment but in the absence of the same it cannot be pressed into service to confer any right upon a person who otherwise does not possess any such right in law. In what manner has this Court to arrive at any conclusion that MDA's decision in calling for fresh tender from the interested persons for making the land available for residential use is not in public interest ? Repeated attempts were made before us to say that providing the land in question for educational use will be more appropriate and subserve public interest than making it available for residential use. Public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detailed letter to the Prime Minister with a copy to the Cabinet Secretary requesting for favourable consideration for grant of extension to Respondent No. 4 for six months from 1st June, 2009 in terms of third proviso to Rule 16(1). This letter refers to the Role of the Chief Secretary in the implementation of stipulated safety and security measures taken by the State in preventing terrorists act in the wake of 26/11 terrorist attack. The State of Maharashtra having taken up number of vital projects in Mumbai and other important Cities in the State with regard to airports, urban Transport, water supply and sanitation, on going revival process of the Ratnagiri Gas Power Project Limited and lastly Budget Session of the State Legislature, it was felt by the State Administration that continuing leadership of the private Respondent over next six months as the Chief Secretary as well as Chairman of the various Committees would facilitate implementation of time bound State projects and would help in achieving maximum benefit for the State Agencies and State projects. This proposal was preceded by a detailed Note on The Proposal running into nearly 13 pages describing details of entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Committee overseeing the revival process, Sri Joseph's deep understanding of the complexities involved in the matter and his problemsolving skills are required for some time for the time bound implementation of the revival programme, as explained in the attached note. xxxxx xxxxx xxxxx ...Here also, the continued stewardship of Sri Joseph would be very much useful in handling the forthcoming monsoon, thanks to his impressive experience of dealing with such problems, both as the Municipal Commissioner of the Municipal Corporation of Greater Mumbai and the Chief Secretary of the State. Lastly, in the forthcoming Budget Session of the State Legislature, commencing in June 2009, the State Govt. wants to initiate and secure approval for a number of important legislative measures, as this would be the last session of the Legislature before the State Assembly Elections. The role of the Chief Secretary in terms of formulating vital legislative proposals, submitted the same for timely prior cabinet approval and then monitoring submission of the corresponding Bills before the Legislature is going to be very crucial, where Sri Joseph with his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision taken is arbitrary, perverse or is contrary to the regulations. In fact, it completely satisfies the essentials of the third proviso to Rule 16(1). 34. It was also argued by the Petitioner that Chief Minister was not the competent authority to forward the proposal for extension of service of the private Respondent and as such the entire consideration and the impugned order of extension of service is vitiated in law. The Maharashtra Government Rules of Business and Instructions (hereinafter referred to as the Rules of Business ) had been relied upon by the parties before us. According to Rule 4 of the said Rules, the business of the Government shall be transacted in the Departments specified in the First Schedule. The Chief Minister has to allocate the portfolios. In the First Schedule, General Administration Department is in the jurisdiction of the Chief Minister. In terms of Instruction 8, subject to the Rules and other provisions in the Instructions, Minister incharge may dispose of all cases arising from the Departments which he controls. Under Instruction 15, various proposals are to be submitted to the Chief Minister for his orders and proposals for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate decision and the decision making process have to be free from element of arbitrariness, discrimination and unfairness. They ought not to vitiate statutory provisions or the basic rule of law. Unlike a cipher, the proposal of the Government has to be self speaking and in bona fide exercise of power and essentially must satisfy rudimentary elements postulated under the third proviso to Rule 16(1) of the All India Services (DeathcumRetirement Benefits) Rules, 1958. It must state full justification and has to be in public interest. The burden to exhibit that these ingredients are satisfied is on the State and to that extent the power of judicial review can be invoked. However, the power of judicial review would require the Court to primarily examine the decision making process and not the final decision per se. It is not the soundness of the reasoning but the process of reasoning which has to be the subject matter of judicial scrutiny. The doctrine that power must be exercised reasonably' has to be reconciled with the no less important doctrine that the Court must not usurp the discretion of the public authority which Parliament appointed to take decision. Within the bounds of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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