RAMANDEEP SINGH Vs. UNION OF INDIA & ORS

JUDGEMENT

(1.) Petitioner has sought a writ in the nature of quo-warranto seeking removal of respondent no. 5 from the post of Chief Principal Secretary to Chief Minister (hereinafter referred as 'CPSCM') on the ground that his appointment is not sustainable in the eyes of law. Petitioner is stated to be a practicing advocate and resident of State of Punjab, District Mohali. He has stated that he has vital interest in the functioning of administrative machinery of the State as it affects his daily life and even otherwise every citizen is entitled to good governance. As a public spirited person he has the right to question the appointment of respondent no. 5. Petitioner has placed on record internal communications, noting files and other documents, all of which may not be in public domain, unless specifically sought. However, same having been produced and made part of record, this court proceeds to examine the pleas raised by the petitioner in this petition.

(2.) Mr. Gurminder Singh, learned senior counsel for the petitioner vehemently urged before the court that vide order dated 17.03.2017, respondent no. 5 was appointed as Chief Principal Secretary to the Chief Minister in the pay-scale of Cabinet Secretary with the stipulation that terms and conditions of the office would be notified later after approval by Council of Ministers. However, there is nothing on record to show that Council of Ministers later accorded approval. This appointment had purportedly been made in exercise of Rules under 18 & 19 of the Rules of Business of Government of Punjab, 1992 made by the Governor in exercise of powers under Article 166(3) of Constitution of India. According to him, said Rules are mandatory in character. Pursuant to aforesaid Rules, a standing order was issued by the Chief Minister stipulating that powers vested in Principal Secretary to Chief Minister would be exercised by 'CPSCM' during the absence of Chief Minister. The said officer would be at liberty to dispose off cases of immediate nature subject to ex-post facto approval. He vehemently submitted that such functions being sovereign in nature cannot be delegated to anybody as it would be repugnant to the Constitutional scheme. According to him, Standing Order would amount to delegation of powers vested in the Council of Ministers headed by Chief Minister to 'CPSCM'. Referring to Article 166(3) of the Constitution, he submitted that the Rules made thereunder are mandatory in nature. The Standing Order is against the Constitutional scheme as it is against the Rules of Business as framed by Governor of Punjab in view of powers vested in him under Article 166 of the Constitution. He further emphasized that there are other 'cadre officers' posted in the CMO who have not been given the liberty to take decisions of their own in the absence of the Chief Minister. However, this power has been vested in a non-cadre officer. He submits that soverign functions cannot be exercised by an 'outsider'. This apart, terms and conditions of his appointment were notified on 19.04.2017, however, they did not have approval of the Council of Ministers. Besides, respondent no. 5 being a retired officer, was not amenable to any disciplinary rules or any other control, having ceased to be a public servant. The order of appointment was not issued in the name of the Governor as mandated by the Constitution and Rules 8 & 9 of the Rules of Business, 1992. Mere authentication thereof by an authority, other than Governor, would not make it a legal order. Though the officer had been empowered to exercise sovereign functions, he had not been administered any oath of secrecy as was necessary in case of Ministers and cadre officers of the State. According to him, the appointment as 'CPSCM' in the rank and pay-scale of Cabinet Secretary shows that it was a post of great authority in the State Government hierarchy and, thus, a 'public office' amenable to question by an ordinary citizen by way of writ of quo-warranto. Referring to order, Annexure P-7, he submitted that the Finance Department had opined that one post of IAS be kept in abeyance in the existing cadre. According to him, this was done with a view to make way for induction of respondent no. 5 as 'CPSCM' and to justify payment of emoluments and perks to him.

(3.) Mr. Ranjit Kumar, learned senior Advocate appearing for the State as well as respondent no. 5 countered the pleas taken by the petitioner. At the outset, he posed a challenge to maintainability of a writ of quo warranto on the ground that respondent no. 5 was not holding a public office. He was merely a 'staff officer' in the CMO which, by no stretch of imagination could be said to be an independent post. His services being contractual in nature and co-terminus with term of the Chief Minister, were not amenable to challenge by way of a writ of quo warranto. According to him, appointment order dated 17.03.2017 having been ratified by Council of Ministers on 18.03.2017 was valid in nature. The fact that respondent no. 5 had been granted pay and allowances admissible to an officer of the rank of Cabinet Secretary to Government of India, did not mean that he was holding the post of Cabinet Secretary and, thus, a 'public office'. Respondent no. 5, who had retired as an Additional Chief Secretary while drawing a salary of Rs.2.25 lacs, had been given a contractual appointment, total emoluments being Rs.2.50 lacs minus pension. Relying upon judgment in R. Chiterlekha, 1964 AIR(SC) 1823, he submitted that provisions of Article 166 were not mandatory but directory in nature. Thus, order which is not issued in the name of Governor cannot be held to be violative of Rules 8 & 9 of 1992, Rules. Besides, the said order stands authenticated by the Chief Secretary who was authorized to do so by the Governor under 1992 Rules. An order not expressed in the name of Governor cannot be held to be unsustainable. In the written statement submitted subsequently, respondents also raised the plea of coram non-judice stating that Government was not accountable to courts while appointing a person unless said post is a 'public office'. Petitioner was infact pursuing a public interest litigation which is beyond the scope of consideration of this court and, thus, it is coram non-judice. Though during the course of arguments it was vehemently denied that powers of the Chief Minister had been delegated to respondent no. 5, in the written arguments it has been contended that delegation of such powers can be done and same cannot be subject matter of judicial review. The arrangement has been worked out to tackle immediate and emergent situations in consultation with the Chief Minister on mobile, if possible; if not, then in terms of the Standing Order. According to him, the Standing Order is totally valid and is being misinterpreted by the petitioner.