Delhi High Court: In a petition filed by the petitioner under Article 226 of Constitution seeking quashing the impugned order dated 06-12-2013 passed by State thereby terminating Petitioner (Secretary, Delhi Legislative Assembly) from his service and holding all his appointments in Delhi Legislative Assembly, illegal and thereby relieving the petitioner from the post of secretary, Delhi Legislative Assembly, Chandra Dhari Singh, J., held that the appointment of the petitioner is in the teeth of law and cannot be saved and thus, cannot be termed as illegal.
The petitioner was employed as Publicity Officer with SSB/Central Secretariat, Directorate General of Security, R.K. Puram, Delhi. On 16-12-1998, the then Speaker of Delhi Legislative Assembly wrote to Secretary Services, Delhi Government, recommending that the services of the petitioner may be obtained on deputation. Pursuant to which the Petitioner was appointed as Officer on Special Duty to the Speaker. The Speaker, vide letter dated 29-12-1998, wrote to Secretary, Cabinet Secretariat for services of petitioner on deputation. Accordingly, the Cabinet Secretariat relieved the petitioner to join DLA on 31-12-1998.
The petitioner joined DLA as Joint Secretary and on 21-08-2001, the Speaker, DLA requested the Prime Minister to transfer the petitioner permanently in DLA, after which the petitioner was permanently absorbed in DLA and the name of the petitioner was struck off from his parent cadre with the approval of Ministry of Home Affairs consequent to his permanent absorption in DLA. The petitioner was promoted to Secretary later and he was relieved from services on 17-05-2010 and was terminated from services on 06-12-2013. The termination order stands challenged by the instant petition on the grounds of want of compliance with the principles of Natural Justice and the lack of competence of the Authority.
Issues
1) Whether the Speaker of Legislative Assembly of Delhi has any power to recruit Officer on Special Duty (OSD), to grant absorption to the post of Joint Secretary and further to appointment to the post of Secretary in the absence of any Recruitment Rules for the post of Joint Secretary and Secretary in Delhi Legislative Assembly?
The Court noted that after well perusing all the relevant constitutional provisions, the appointments to the position of Secretary, DLA fall outside the purview of the office of Speaker, DLA who, at the most, has power to the extent of being consulted and not even extendable to his concurrence. The appropriate Appointing Authority is the Lt. Governor of the NCT of Delhi.
2) Whether the appointment of the petitioner was legal?
The Court noted that in none of the appointments of the petitioner against the abovementioned posts, the Lt. Governor’s consent and approval for such appointment was obtained and therefore, these appointments were per se illegal and void ab-initio being in violation of the Rules made under Article 309 of the Constitution and because the non-compliance goes to the root of all these illegal appointments.
The Court observed that in the instant case, the consultation with the UPSC was a must but not undertaken at the time of appointment by way of absorption of the petitioner to the post of Joint Secretary and promotion to the post of Secretary and hence, the said appointments are contrary to law.
The Court further observed that the manner of transfer of such officer on deputation as OSD that too on a non-existent post, without his being on regular service of the Government is bad in law. The appointment of the petitioner being against a non-existent post and not being appointment to the service, much less substantive appointment to the service, could not have been appointment in the absence of the post.
The Court further stated that the deputation of the petitioner was made on the non-existent post of OSD, after completion of the probation period as OSD, he was immediately absorbed into the post of Joint Secretary and immediately within a year, he was given the charge of Secretary with all upgradations in pay scales. Nowhere was the approval taken from the competent authority for such deputation as OSD, absorption to Joint Secretary and promotion to Secretary, the appointment was vitiated by fraud and is void ab initio.
Thus, the Court held that merely on the grounds of the appointment of the petitioner not being carried out by the appropriate Appointing Authority, the said appointment is invalidated and becomes illegal.
3) Whether the termination in the instant case was just and proper in accordance with law?
The Court recorded that when the appointment is void ab-initio, no enforceable legal right can be accrued to the petitioner on basis of illegal appointments and the petitioner cannot claim observance of the same procedure towards the termination of service of regularly appointed persons.
Thus, when an appointment is not an appointment in the eye of law, the appointee cannot claim right to the post and cannot claim the constitutional guarantee provided under Article 311 of the Constitution of India.
The Court concluded that if the very appointment to the post is vitiated by fraud, forgery or illegality, it would necessarily follow that no constitutional rights under Article 311 can possibly be invoked. In such a situation, the question is whether the person concerned is at all a civil servant of the Union and if he is not validly so, then the issue remains outside the purview of Article 311. If the very entry door into the civil service of the Union is barred, the cloak of protection under Article 311 cannot be available.
In view of the irregularities and illegalities therein, Show Cause Notices were invoked against him as ordered by the Lt. Governor being the appropriate appointing authority and even the opportunity of being heard was granted to the petitioner, but neither the petitioner disputed nor gave any explanation to defend himself. Hence, the service of the petitioner was rightly terminated by the Lt. Governor.
[Siddharth Rao v. GNCTD, 2022 SCC OnLine Del 4606, decided on 23-12-2022]
Advocates who appeared in this case :
Mr. Ravinder K. Yadav, Mr. Vinay Mohan Sharma, Mr. Baljeet Singh, Ms. Arti Anupriya, Mr. Vineet Yadav, Mr. Kartikey, Ms. Charu Sharma, Mr. Raghav Anthwal, Mr. Abhimanyu Yadav and Mr. Paras Juneja, Advocates for the Petitioner;
Mr. Yeeshu Jain, ASC with Ms. Jyoti Tyagi, Advocate alongwith Mr. Raj Kumar, Sr. Assistant for the State.
*Arunima Bose, Editorial Assistant has reported this brief.
