Priyanka Singh
Published on: 30 September 2022 at 21:15 IST
The Rajasthan High Court has observed that under our Constitutional scheme, the Executive Head of a State is a Governor, and that, all transactions of the State Government are carried out under his authority.
Thus, the Court, while basing observation on Article 154 and 162, ruled that it is default that the office of the Governor is part of the State Government, and also, its Secretariat is also a part of the State Government.
Justice Mahendra Kumar Goyal examined the status and position of a Governor under the Constitution.
A Governor’s Secretariat –
The Court remarked that, “Logically, once the Governor is part of the State Government, as a natural corollary, its Secretariat must also be part of the State Government.”
The Court also added that the Constitution doesn’t envisage a separate and independent secretarial service attached to a Governor’s office as much wherever it is required at, such as Articles 98, 146, 187, 229 and 218.
The Court noted that the Rule 4(1) of the Governors (Allowances and Privileges) Rules of 1987 covers the entire issue which gives the provision for a separate Secretarial staff for a Governor, which shall be provided by the State Government and the expenses shall be charged on the Consolidated Fund of the relevant State, not forming a part of the Governor’s allowances.
The Court observed that the employees working in the Governor’s Secretariat are governed by the Rajasthan Civil Services (CCA) Rules, 1958 while the Secretary being the Head of the Department. And, by virtue of Rule 9 read with Schedule III and Rule 15 of the Rule of 1958, it is the disciplinary authority for the Ministerial cadre employees in the Governor’s Secretariat. The Court, therefore, held that the Governor’s Secretariat are a provided by the State and are a part of the State Government.
The question endorsed by the Court was that – which Service Rules govern the recruitment and other service conditions of the staff working in the Governor’s Secretariat; whether the Rules framed by the State Government under Article 309 of the Constitution of India or are there any independent Rules framed by the Governor’s office which are applicable on such staff.
With regards to the said questions, the State being governed by the Rule of Law, the public employment has to be governed by Rules/ Regulations framed within the constitutional framework and cannot be left uncontrolled at the discretion of any authority.
Aside the subject guidelines of 29.01.2013, no independent Rules were cited by the petitioners who are the employees under the office of Governor, in support of their submission on the inapplicability of the Rules on the staff, which were framed by the State Government under Article 309.
The Court concurred that none of the parties is at variance on the aspect that the Rules of 1970 do not govern the service conditions of the staff working in the Governor Secretariat is an office under the State Government and hence, it opined that the Rajasthan Subordinate and Ministerial Service Rules, 1999 hold the field.
Further, the Court observed that the petitioners’ suspicions of the Governor’s Secretariat to be an office subordinate to the State Government, may violate the inviolable independence and high constitutional status of the office of the Governor, is a misconception as the Governor’s office and its Secretariat are two separate and independent entities.
The Court said that it is not convinced that the DoP had the authority to hold in the absence of applicability of the Rules of 1970, the Governor office was free to frame its own Service Rules or lay down guidelines governing promotion of the Class – IV employees to the post of LDC.
The Court added that the procedure as prescribed under the Rules of Business has to be followed by the DoP, before framing or amending any Service Rules regulating recruitment and conditions of service of persons appointed to the Public Services and posts.
In this regard, the court opined that the procedure prescribed under the Rules of Businss has not been followed either before issuance of the letter dated 20.12.2012 or before issuing the order dated 29.01.2013 laying down the guidelines prescribing the promotion criteria. The Court remarked that the said letter and guidelines issued by the Governor’s office dehorns the statutory provisions are void ab initio.
The court remarked that, “Contention of the learned counsels for the petitioners that the State was estopped from changing its stand which it has taken in its initial reply to the writ petition no. 15192/2017 wherein, it has stated that since the Rules of 1970 were inapplicable on the Governor Secretariat.”
“It was at liberty to frame its independent Rules to govern the service conditions of its staff, cannot be countenanced as it is trite law that there can be no estoppel against the law.”
The Court has stated that “it is not persuaded to hold that merely because the petitioners (promotee employees) were not afforded an opportunity of hearing before passing the order on 30.7.2020 for withdrawing the benefit of promotion granted to them, it needs to be quashed and set aside.”
He Court further observed that it is common knowledge that if setting aside an order which is found to be issued without jurisdiction/bad in law, results into restoration of another illegal order, the courts would be loath to set aside the later order as it would amount to perpetuate illegality.
The Court added that if the order dated 30.07.2020 is quashed and set aside for being violative of the principles of natural justice, it would restore the promotion order of the promotee employees based on the guidelines dated 29.01.2013 which have been held to be void ab initio and thus, non-est.
Can Promoted Employees Continue on the Post on Account of Promotion Granted under Guidelines –
As noted by the Court, the petitioners have been granted promotion quota consulting the guidelines dated 29.01.2013, held to be void ab initio and non-est. It was also disclosed that besides the guidelines, the eligible and senior most employees of Class-IV would’ve still been promoted given the appropriate time.
The Court refrained from passing any order in capacity of the employees in the Governor’s Secretariat at the relevant time when the guidelines dated 29.01.2013 were issued, who were senior to the petitioners, the promote employees and were otherwise eligible for promotion to the post of LDC as per their qualification, besides the guidelines.
While noting such a factual background and the judgments passed by the Supreme Court, the bench directed to not remove/terminate the service of n employee who has worked on a post for a considerable period of time, though not eligible, for no fault of his own and to balance equity.
The Directions of Court –
- Set aside the letter of the Principal Secretary, Department of Personnel which indicated to the Governor’s office that it was free to frame its own Rules/guidelines granting relaxation in the promotion quota.
- Quashed the Guidelines for promotion of working class-IV employees to the post of LDC in the Raj Bhawan.
- Quashed and set aside the order pertaining to the promotion of the petitioners (promote employees) on the post of Clerk Gr.I, which was subject to decisions of writ petition. However, the salary, other emoluments or any other monetary benefit already paid and received by such petitioners shall not be recoverable.
- The petitioners, who were initially appointed as Class IV employees in the office of the Governor of Rajasthan and were later on promoted as LDC after being granted relaxation in the reservation quota for promotion, shall continue as LDC. The petitioners shall be placed in seniority list of LDC below those petitioners who were direct recruiters on the post of LDC, and shall be entitled for further promotion as and when they are entitled as vide seniority.