STATE OF UTTAR PRADESH Vs. GIRISH BIHARI

JUDGEMENT

(1.) -Leave granted.

(2.) The respondent Dr. Girish Bihari, a member of the Indian Police Service, was to reach the age of superannuation on 5th March, 1996 and, therefore, was to retire from service with effect from the afternoon of 31-3-1996 i.e. on the last date of the month in which he reached that age. On 20th March 1996, the Governor, State of Uttar Pradesh by an order under Rule 16 of All India Services (Death -cum-Retirement Benefits) Rules, 1958 (hereinafter referred to as "the Rules") passed an order for extension of the service of Dr. Girish Bihari for 6 months from the date of his retirement i.e. 31-3-1996. On 23rd March, 1996, the Governor in exercise of powers, under Section 21 of the General Clauses Act issued the impugned order cancelling the earlier order dated 20th March, 1996 granting extension to the appellant.

(3.) The surrounding circumstances of the case are as under:- On 18th October, 1995, under a proclamation issued under Article 356 of the Constitution by the President, the President assumed to himself all functions of the Government as well as the powers vested in or exercisable by the Governor. Having assumed powers under Article 356, the President by a further notification authorised the Governor to exercise all powers by himself on his behalf. On 19th March, 1996, the Election Commission announced elections to the State Legislature and issued instructions known as Model Guidelines for the Government. On 20th March, 1996, the Election Commission sent out messages to the Chief Secretaries about announcement of general elections to the House of People and Legislative Assemblies inter alia mentioning therein that the standing instructions of the Commission including ban on transfers, etc., have come into force. The Chief Electoral Officer was of the view that the order retaining the respondent beyond the date of superannuation required the prior consent of the Election Commission. The Election Commission directed that the order dated 20th March, 1996, granting extension to the respondent be revoked as it was violative of the Model Code of Conduct issued by the Commission. The Governor sought advice from the Advocate General and thereafter by the impugned order cancelled the order dated 20th March, 1996. The respondent challenged the impugned order before the Central Administrative Tribunal inter alia on the grounds that the Governor instead of acting on his fair judgment acted under preemptory direction of the Election Commission and, therefore, the impugned order was bad; that the order dated 20th March, 1996 had created a right to continue for a period of 6 months and, therefore, the impugned order passed without an opportunity to the appellant of being heard was vitiated on account of violation of the principles of natural justice. The petition was defended by the appellant-State of Uttar Pradesh on the ground that there was no infirmity in the order as the Governor had used his own judgment and discretion in a fair manner after obtaining constitutional advice under Article 156 (2) of the Constitution of India and that the impugned order was to be operative with effect from 1-4-1996 and, therefore, till then the order had not created any vested right of any kind in the respondent.