Skip to content


V. Govindarajan Vs. the Surveyor General of India, Dehradun - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 5058 of 1980
Judge
Reported inAIR1981Kant142
ActsConstitution of India - Article 309; Fundamental Rules - Rules 6, 15 and 49
AppellantV. Govindarajan
RespondentThe Surveyor General of India, Dehradun
Appellant AdvocateA.G. HoIla, Adv.
Respondent AdvocateB.S. Keshava Iyengar, Adv. General and ;U.L. Narayana Rao, Sr. Central Govt. Standing Counsel
Excerpt:
.....would have a meaning. in spite of this enactment, if still the departmental heads continue to have official business in english language, action has to be taken against such persons. - bangalore, was perfectly valid and consequently, the initiation of disciplinary proceedings was also valid. south central circle, hyderabad to hold disciplinary proceedings against the petitioner was bad. if the power to make such an arrangement forms part of the power to transfer, the order would be valid, as the submission made by the learned advocate general that larger power necessarily includes smaller power is well founded......south central circle, hyderabad to exercise some of the power exercisable by the director southern circle bangalore. the power to transfer, which is a larger power, the necessarily include the power to authorise an officer to discharge some of-the duties of another post, which is vacant. hence the order made by survey or general authorising the, director south central circle, hyderabad to exercise disciplinary powers against class iii officials exercisable by the director, southern circle. bangalore, was perfectly valid and consequently, the initiation of disciplinary proceedings was also valid.6. sri a. g. holla, learned counsel appearing for the petitioner, did not dispute that the power of the president to transfer a government servant froth one post to another under rule 15 of the.....
Judgment:
ORDER

1. In this writ petition, in which a civil servant of the Central Government in the Survey Department is questioning the legality of the initiation of disciplinary proceedings against him the following question of law arises for consideration:

Whether the order made by the Surveyor General of India (Head of the Department) authorising the Director, South Central Circle, Hyderabad, to exercise disciplinary powers exercisable by the Director, Southern Circle, Bangalore under whose jurisdiction the petitioner is working-(i) falls within Rule 15 of the Fundamental Rules which provides for transfer Of an officer from one post to another, which power has been delegated to the Head of the Department and, therefore, valid? Or

(ii) falls within Rule 49 of the Fundamental Rules, which provides for combination of appointments which power, in relation to the category of posts concerned in this case, has not been delegated to the Head of the Department and, therefore, invalid?

2. The facts of the case to the extent necessary, for the disposal of this Case are as follows: The Petitioner is a senior scale Stenographer in the Stenographer in the Survey Department of the central Government. During the year 1979, he was working in the office of the Director, Southern Circle, Bangalore'. A departmental enquiry was instituted' against - him as per communication dated 8-5-1979 (Annexure 'F). The misconduct alleged against the petitioner was that in a representation dated 30-4-1979 addressed to the Secretary to the Government of India, Department of Science and Technology, the petitioner had quoted the contents of a telegram dated 2, 1978 (sic) and passages from a letter dated, 31-5-1978, both of which had been sent by the Director, Southern Circle, Bangalore, to the Surveyor General of India, though the petitioner was not authorised to have access or to posses copies of the same. The said communication was withdrawn as per order dated 27-6-1979 (Annexure III') and a fresh departmental enquiry was instituted on the same charge and a communication of the same date was sent to the petitioner (Annexure J). The relevant portion of the communication reads -

'Telegrams: Sursouthcent. Survey of India

South Central Circle Office,

3-6-222, Himmayathnagar,

P. B. 1004,

Hyderabad 500029 (AP).

No. C83-44-S114-A-41 (b),

Southern Circle.

Dated, the 27th June 1979.

MEMORANDUM

The undersigned proposes to hold an enquiry against 'Shri V. Govindarajan, Stenographer (Senior Scale) No, 24 Party (S. C.), under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The substance of the imputations of misconduct or misbehaviour in respect of which the inquiry is proposed to be held is set out in the enclosed statement of articles of charges (Annexure-D, A statement of the imputations of misconduct or misbehaviour in support of each article of charge is, enclosed (Annexure-II). A list of documents by which, and a list of witnesses by whom, the articles of charges are proposed to be sustained 'are also enclosed (Annexures III & IV).

2. Shri V. Govindarajan is directed to submit Within 10 days of the receipt of this Memorandum a written statement of his defence and also to state, whether he desires, to, be heard in, person.

xx xx xx

Sd/-

(K. Satyanarayana)

Director,

South Central Circle & Appointing Authority for

Southern Circle

(Disciplinary Authority).'

The petitioner contends that as he has been working in the office of the Director of Southern Circle. Bangalore, the Director, Southern, Central Circle, Hyderabad, had no legal authority to initiate disciplinary proceedings against him.

3. The stand taken on behalf of the respondents is as, follows: The 'President of India is the appointing authority for he, posts, of Directors. K. Sathyanarayana was appointed as Direct6r by order dated 22-4-1978 (Annexure P-5). He had been posted as Director of South Central Circle, Hyderabad. The Head of the Department, namely, the Surveyor General of India had authorised K. Sathyanarayana, Director or, South Central Circle, to exercise the powers of the appointing authority in respect of officials in the office of the Director of-Southern Circle, Bangalore, as the office of he said Director was vacant. The said, order is dated 31-5-1979 (Annexure R-1). It reads-

Survey of India

Surveyor General's office,

Post Box No. 37,

Dehra Dun (UP) India,

Dated the 31st May 1979,

19th Jys 1901 (Saka)

Office Memorandum No. E2-28740/1442.

Shri K. Satyanarayana, Director, South Central Circle, Survey of India, Hyderabad, is hereby authorised to exercise the powers of the 'Appointing Authority' in respect-of Group 'C' employees of Southern Circle, Survey of India, Bangalore with immediate effect, till such time the' post of Director, Southern. Circle is taken over by regular incumbent.

Sd/-

K. L. KHO SLA,

Major General

'Surveyor General of India.'

In view of the specific authorisation, the contention urged for the petitioner that the initiation of disciplinary proceedings against him by K. Sathyanarayana, Director. South Central Circle, Hyderabad, was without authority of law, is untenable.

4. There is no dispute that the authority competent to initiate disciplinary action against the petitioner, in accordance with the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 is the Director of the Bangalore Circle, as according to the rules, the Director, who is the Head of the Circle, is the competent authority. There is also no dispute that K. Satyanarayana had been appointed to the post of Director by the President of India and that he had been posted as Director of the South Central Circle, Hyderabad. But the, controversy is, according to the petitioner, the officer, who had been functioning as Director of South Central Circle, Hyderabad, could not exercise the 'disciplinary powers conferred on the Director, Southern Circle, Bangalore, unless he was also appointed as Director of the Bangalore Circle by the appointing authority, namely, the President of India. According to the respondents, as the Head of the Department authorised the Director, South Central Circle, to exercise disciplinary powers conferred on the Director of Southern Circle, Bangalore, the initiation of disciplinary Proceedings is valid. These rival contentions urged for the Petitioner and the respondents, respectively, have given rise to the question of law set out in paragraph-1.

5. In support of the stand taken on behalf of the respondents, learned Advocate General made the following submissions.

Rule 15 of the Fundamental Rules confers power on the President to transfer a Government servant from one post to another, The said power has been validly delegated, which is permissible as per Rule 6 of the Fundamental Rules, to all the Heads of Department in full. Therefore, the Surveyor General, who is the Head of the Department has the power to transfer the Person functioning as Director of South Central Circle, Hyderabad as Director of Southern Circle, Bangalore. In the present case instead of transferring K. Sathyanarayana from Hyderabad to Bangalore, the Head of the Department had authorised the Director of South Central Circle, Hyderabad to exercise some of the power exercisable by the Director Southern Circle Bangalore. The power to transfer, which is a larger Power, the necessarily include the power to authorise an officer to discharge some of-the duties of another Post, which is vacant. Hence the order made by Survey or General authorising the, Director South Central Circle, Hyderabad to exercise disciplinary powers against Class III officials exercisable by the Director, Southern Circle. Bangalore, was perfectly valid and consequently, the initiation of disciplinary proceedings was also valid.

6. Sri A. G. Holla, learned counsel appearing for the Petitioner, did not dispute that the power of the President to transfer a Government servant froth one post to another under Rule 15 of the Fundamental Rules had been delegated in full to the Head of the Department. But his first contention was that the Surveyor General, by virtue of the said delegation, could have transferred the incumbent, who had been posted and functioning as Director of South Central Circle, Hyderabad to the post of Director, Southern Circle, Bangalore, but this power, did not include the Power to authorise the Director of South Central Circle, Hyderabad, to exercise the Powers of the Director of Southern Circle, Bangalore also. He submitted that such an authorisation is in the nature of combination of appointments specifically provided for in Rule 49 of the Fundamental Rules and the said power had not been delegated to the Head of the Department.

6A. The second contention urged for the petitioner was that even if there was delegation of power to the Head of the Department, the Surveyor General was not the Head of the Department at all, as there was no notification issued to that effect by the Central Government and in the absence of such a notification the Secretary to the Government of India in the concerned department would be the Head of the Department and, therefore, the order of the Surveyor General authorising the Director. South Central Circle, Hyderabad to hold disciplinary proceedings against the petitioner was bad. The third contention urged was that the initiation of disciplinary proceedings was mala fide and illegal. It is unnecessary to consider these contentions as I am accepting the first contention.

6B. The answer to the first contention depends upon the interpretation of Rules 15 and 49 of the Fundamental Rules and the extent of delegation of powers made by the Central Government in exercise of its power under R. 6 of the Fundamental Rules. Rule 15 to the extent relevant to this case reads as follows:

'F. R. 1.5 (a) The President may transfer a Government servant from one post to another;

** ** ** '

(Rest omitted as unnecessary)

Rule 49 of the Fundamental Rules reads as follows:

'F. R. 49. The Central Government may appoint a Government servant already holding a post- in a substantive or officiating capacity to officiate, as a temporary measure, in one or more of other independent posts at one time under that Government. In such cases, his pay is regulated as follows:

(i) Where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the competent authority reduces his officiating pay, under Rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post;

(ii) where a Government servant is formally appointed to hold dual charges of two posts in the same cadre in the same office carrying identical scales of pay, no additional pay shall be admissible irrespective of the period of dual charges:

Provided that if the Government servant is appointed to an additional Post which carries a special pay, then he shall be allowed such special pay.

(iii) where a Government servant is formally appointed to hold charge of another post or posts which is or are not in the same office or which though in the same office, is or are not in the same cadre/line of promotion, he shall be allowed the pay of the higher post, or of the highest post if he holds charge of more than two posts in addition to ten per cent of the presumptive pay of the additional post or posts, if the additional charge is held for a period exceeding 39 days but not exceeding 3 months;

Provided that if in any particular case, it is considered necessary. that the Government servant should hold charge of another post or posts for a period exceeding 3months, the concurrence of the Ministry of Finance shall be obtained for the payment of the additional Pay beyond the period of 3 months.

The delegation of powers made are set out in Appendix-3 to the Fundamental Rules. The relevant portion of the same reads as follows:

(See relevant portion on next page)

In view of the delegation of power to transfer officials to the fullest extent the Head of Department, the Surveyor General of India, on the basis that he is the Head of the Department, undoubtedly had the power to transfer K. Sathyanarayana, who was working as Director, South Central Circle, Hyderabad, to Bangalore, as against the post of Director, Southern Circle, Banaglore.1 But that is not what the Surveyor General had done. He only authorised K. Sathyanarayana, who. was working as Director of South Central Circle, Hyderabad, also to exercise some of the powers exercisable by the Director, Southern Circle, Bangalore. If the power to make such an arrangement forms part of the power to transfer, the order would be valid, as the submission made by the learned Advocate General that larger power necessarily includes smaller power is well founded. But it is not so, and Rule 49 of the Fundamental Rules precludes me from taking such a view. According to the said rule, a Government servant already holding a post in a substantive or officiating capacity could be appointed to officiate as a temporary measure in one or more other independent posts at the same time. Clauses (i) to (iii) of Rule 49 Of the Fundamental Rules provide for Payment of additional emoluments in the event of a Government servant having been asked to discharge the duties of I another post. The arrangement made by the Head of the Department by its order dated 31-5-1979 (Exhibit-RI) was one in the nature of combination

Appendix 3

Delegation made under Fundamental Rule 6

Serial F. R. Number Nature of power Authority to which Extent of power

the power is delegated

delegated.

6-A 15 Power to transfer a All Heads of Full Power.

Government servant departments.

from one post to another.

20. 49 Power to appoint a All Heads of Full power, pro

Government servant to departments. vided that they

hold temporarily or to have power to

officiate in more than appoint Govern-

one post, and to fix the ment servant per

pay of subsidiary poem -manently to each

and the amount of of the posts

compensatory allowances conserned.

to be drawn.

appointments as provided in Rule 49 of the Fundamental Rules. The type of combination made in this case falls within clause (iii) of Rule 49 of the Fundamental Rules as in this case K. Sathyanarayana, who Was a Government servant working as Director of South Central Circle at Hyderabad, was asked to hold charge of the post of Director, Southern Circle, Bangalore, in so far it related to the exercise of disciplinary powers, as the post was not in the same office in which K. Sathyanarayana was working. In terms of Rule 49 the power to combine appointments is conferred on the Central Government. Though according to the delegation of powers set out earlier the full Power to effect such combination' is conferred on the Heads of Departments, the delegation is subject to a rider, namely that the Heads of the Department concerned must be having the power to appoint Government servants permanently to each of the post concerned. Therefore, if the Head of the Department was the appointing authority for both the posts, namely, the post of Director, South Central Circle, Hyderabad, and the Director, Southern Circle, Bangalore, it would have had full power to effect combination of appointments. Therefore, by the exercise of that power he could have either authorised or appointed the Director of one circle to function as Director of another Circle, or he could have authorised the Director of one circle to exercise only some of the specified powers of Director of another circle. In the present case, there is no dispute that the appointing authority for the post of, Director, South Central Circle, Hyderabad, and for the post of Director, Southern Circle. Bangalore is the President of India and not the Head of the Department. Therefore, neither the Head of the Department could pass an order directing the Director of South' Central Circle, Hyderabad, to hold an additional charge of the post of Director, Southern Circle, Bangalore, nor could he authorise the former to exercise some of the powers exercisable by the latter. I am unable to agree that the exercise of the power by the Head of the Department of the nature with which we are concerned in this case,, namely, authorising the Director of one circle to l exercise powers of the Director, of another circle, falls within the transfer under Rule 15. In my opinion this is a clear case of combination of appointments specifically provided for under Rule 49 of the Fundamental Rules. In the case of transfer, the officer' ceases to exercise the functions of one post and assumes charge of another Post. The power of transfer does not, therefore, include the power to authorise an officer to discharge the powers and duties of more than one post at the same time. Combination of appointments, in the nature of things, empowers a single individual to exercise the powers of two or more posts at the same time and also, involves financial commitments for the State by way of paying additional emoluments to the person holding additional charge as provided for in R. 49 of the Fundamental Rules. It is true that it the power under Rule 49 had been delegated to the Department without limiting it to the posts for which the Head of the Department was the appointing authority, such power to effect combination of appointments in full necessarily would have included the power to effect combination of appointments to a limited and specified extent, as done in this case. But the argument advanced by the learned Advocate General that larger power includes the smaller power does not in any way help the stand taken on behalf of the respondents, as in this case the power given under Rule 49 to combine appointments in respect of the posts of Directors for which the Head of Department was not appointing authority, has not been delegated to it.

7. Therefore I hold that the disciplinary proceedings instituted by the Director, South Central Circle, Hyderabad, against the petitioner was without jurisdiction as he had not been appointed as Director of Southern - Circle, Bangalore, either by transfer or by an order authorising him to hold additional charge of the post of Director, Southern Circle, Bangalore by an order made by a competent authority.

8. In the result, I make the following order:

(1) Rule made absolute.

(2) A writ in the nature of prohibition shall issue to the respondents not, to continue the disciplinary proceedings instituted against the petitioner as Per order dated 27-6-1979 (Annexure-J).

(3) This order does not however preclude the competent authority to institute disciplinary proceedings against the petitioner if it considers that there is justification to do so.

(4) No costs.

9. Petition allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //