1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION (L) NO. 63 OF 2009 ALONG WITH WRIT PETITION NO. 3568 OF 2009 (AURANGABAD BENCH) PIL (L) NO. 63 OF 2009 Shri R.R. Tripathi (Advocate), ) D-18, Vadala Apartment, Ganeshnagar, ) Thane (W), Maharashtra. ).. Petitioner Versus 1. Union of India, ) Through the Secretary, ) Ministry of Personnel, ) North Block, New Delhi. ) 2. Secretary, Chief Minister Secretariate, ) Government of Maharashtra. ) 3. State of Maharashtra, ) Through Principal Secretary, ) General Administration Department, ) 6th Floor, Mantralaya, Mumbai. ) 4. Shri Johny Joseph, ) Chief Secretary, ) State of Maharashtra, Mumbai. ).. Respondents -- 2 ALONG WITH WP NO.3568 OF 2009 (AURANGABAD BENCH) 1. Zameer Ahmed s/o. Rahim Quadri, ) Age 38 years, Occ: Journalist/ ) Correspondent/Editor, ) R/o. Kat-Kat Gate Road, ) Aurangabad. ) 2. Syed Shah Salim s/o. Fakruddin, ) Age 52 years, Occ: Social Service, ) R/o. Yunus Colony, Aurangabad. ).. Petitioners Versus 1. Union of India, ) Through Principal Secretary, ) Department of Personnel and ) Training, Govt. of India, ) New Delhi. ) (Copy to be served on Assistant ) Solicitor General of India, ) Aurangabad.) ) 2. The State of Maharashtra, ) Through Principal Secretary, ) General Administration Department, ) Mantralaya, Mumbai – 400 032. ) ( Copy to be servedon Govt. Pleader, ) High Court, Aurangabad. ) 3. Shri Johny Joseph, ) Age 61 years, Occ: Chief Secretary, ) Govt. of Maharashtra, Mantralaya, ) Mumbai – 400 032. ).. Respondents 3 -- Shri R.R. Tripathi, Petitioner-in-person in W.P.(L) No.63 of 2009. Shri S.V. Chilgare for Petitioner in WP No.3568 of 2009. Shri R.M. Kadam, Advocate General along with Shri D.A. Nalawade, Government Pleader for the State. Shri D.J. Khambatta, Additional Solicitor General, along with Shri Rui Rodrigues and Shri P. Khosla for Union of India. -- CORAM : SWATANTER KUMAR, C.J. & S.C. DHARMADHIKARI, J JUDGMENT RESERVED ON : 5TH JULY, 2009 JUDGMENT PRONOUNCED ON : 23RD JULY, 2009 JUDGMENT : ( PER SWATANTER KUMAR, CHIEF JUSTICE ) Heard. Rule in both the Writ Petitions. By consent, the rule in both the Writ Petitions made returnable forthwith. Respondents waive service. By consent, both the Petitions are taken up for hearing and final disposal at the admission stage itself. 2. In both the above Writ Petitions, the Petitioners primarily question the order of extension of service of the Chief Secretary, State of Maharashtra, Mumbai, vide order dated 30th May, 2009 Exhibit-A. Writ Petition No.3568 of 2009 had been filed at Aurangabad Bench of this High Court, while Writ Petition Lodging 4 No.63 of 2009 has been filed at the Principal Bench. Vide order dated 17th June, 2009, both these Petitions were ordered to be listed and heard together as common question of law is raised in these Petitions and somewhat common reliefs are sought. Thus, by this judgment, we will dispose of both the Petitions together. 3. The Petitioners in both these Petitions claim to be public spirited persons, one is a Journalist and Social Worker, while the other was Social Journalist in the past and is Lawyer at present and both of them, in the past, have taken up various issues of public importance by filing public interest litigations in the Courts. Shri Johny Joseph, the Chief Secretary of the State of Maharashtra is stated to have attained the age of 60 years on 29th May, 2009, his date of birth being 29th May, 1949. Upon attaining that age, he would superannuate from the service on 30th May, 2009. However, the Union of India upon recommendation of the State of Maharashtra through the Principal Secretary, General Administrative Department, Mantralaya, Mumbai, extended the period of superannuation of the said Respondent. In Writ Petition No.3568 of 2009, the Petitioner thus challenges the impugned order of extension 5 on the ground that the same is not in public interest and is even contrary to the judgment of the High Court dated 29th April, 2009 passed in PIL No.85 of 2008. According to this Petitioners, the extension is only for political reason and is not covered under Rule 16(1) of the All India Services (Death-cum-Retirement Benefit ) Rules, 1958 ( hereinafter referred to as the said “Rules” ) and no extension in any case could be granted exceeding a period of three months even in public interest. Thus, it is prayed that this order be set aside, eligible officers from the IAS existing cadre should be considered for being selected to the post of Chief Secretary, Maharashtra State and the extension order should not be given effect to. 4. While in Writ Petition (L) No. 63 of 2009, the Petitioner desires to impugn the order of extension dated 30th May, 2009 and has also taken up a plea that it is not covered under the said Rules . He has also taken up the point that the Government Notification issued by the State, dated 30th May, 2005 though contemplates extension of service but it is for a very limited period, if the officer is dealing with the Budget Work or is working as Full Time Member of 6 the committee to be wound up soon. No such circumstances existed under the present case and as such extension to the said Respondent ought not to have been granted. Reliance was placed on the decision of Division Bench of this Court in the case of R.R. Tripathi v. Union of India. 1 5. The Petitioner has also raised a vague challenge to the Notification issued by the Government vide which Third Proviso was added to Rule 16 dealing with the extension of tenure of the Chief Secretary as being irregular and without mandatory consultation with other States, and therefore, being void and ineffective in law. The grounds taken up in this Petition in addition to the grounds taken in the other Petition are that the other eligible officers are deprived of proper consideration which affects moral of service cadre by undue and unjustified extension. According to the Petitioner, no proper proposal, as required under the Rules and the Appendix to those Rules, was made by the State Government and approval of the Central Government is unreasoned without basis and is made in undue haste. Relying upon the judgment of the Division Bench of 1 (2008) 4 BCR 688 7 this Court in R.R. Tripathi’s case (supra), it is contended that the action of the State and the Union of India is discriminatory and arbitrarily. 6. The Respondents produced the original records in the Court being the file containing the noting and decisions resulting in the passing of extension order in favour of the private Respondent and argued that there is hardly any challenge to the Notification issued by the Central Government adding Third Proviso to Rule 16 as the Notification itself opens with the words “the Central Government, after consultation with the Government of the States concerned hereby makes the following rules to amend the All India Services (Death-Cum-Retirement Benefits) Rules, 1958. 7. Thus, the Notification is neither bad in law nor suffers from element of discrimination. According to the Respondents, there is full justification for and public interest is served by giving extension to the Chief Secretary. The decision being for valid reason and free of arbitrariness would fall beyond the scope of judicial review. There was, according to the Respondents, a definite detailed 8 proposal submitted to the Central Government which upon due application of mind was approved and resultantly the Government Resolution granting extension to the Respondent was issued. 8. In addition to the above, the Respondents have raised a question of maintainability of the present Writ Petitions as Public Interest Litigations, the matter being one relating to the service matter. 9. Our attention was also drawn to an order dated passed by a Division Bench of this Court in Writ Petition No.85 of 2008 where certain directions were issued by the Court in relation to the Circular issued by the State Government dated 9th November, 1995. It was not in dispute before us that the said Circular has no application to the members of Indian Administrative Service whose conditions of service are controlled by the All India Services Act, 1951 and for whom the Central Government is the Competent Authority. In view of this, this point does not need any further deliberation. 9 10. Now we will proceed to examine the merit or otherwise of the contentions raised before us during the course of hearing. it will be useful to reproduce the impugned Government Resolution dated 30th May, 2009, at the very outset, which reads as under :- “Shri Johny Joseph, IAS, Chief Secretary to the Government - Extension in service to ..... GOVERNMENT OF MAHARASHTRA General Administration Department, Resolution No.AEO-1109/C.R.280/2009X Mantralaya, Mumbai – 400 032. Dated : 30th May, 2009 Reference: Department of Personnel and Training, Government of India’s letter No. 26014/2009-AIS(II), dated 15 May,2009. RESOLUTION :- Government is pleased to grant extension in service to Johny Joseph, IAS (MH:72) in the post of Chief Secretary to the Government of Maharashtra for a period of six months from 1st June 2009 to 30th November 2009 with the approval of the Government of India, Department of Personnel and Training vide letter mentioned above. By order and in the name of the Governor of Maharashtra. Sd/- (V.N. More) Joint Secretary to the Government” 10 11. Both the parties have placed reliance upon a Division Bench Judgment of this Court in the case of R.R. Tripathi (Supra), while relying upon different paragraphs of the said judgment. According to the Respondents, they have fully satisfied the criteria and principles stated in the judgment while according to the Petitioners there is a glaring violation of the principles stated therein and extension granted to the Respondents is arbitrary and unfair. In that case, the Court was concerned with the grant of extension to Dr. P.S. Pasricha, Director General of Police, Maharashtra State, and Shri D.N. Jadhav, Commissioner of Police, Mumbai. The State Government had claimed that keeping in view their service profiles and for the purposes of setting up police establishment Board and State Security Commission, the services of those Respondents were necessary in public interest. Both those officers were to retire from service on 30th November, 2007 upon attaining the age of superannuation. The Home Department of the State of Maharashtra had sent a proposal to the Ministry of Home Affairs, New Delhi, for approval of the Central Government for extension of their service 11 which was granted. These extensions were challenged on the ground that they were contrary to the Rule 16(1) of the the said Rules as well as they were ex-facie arbitrary and violative of Articles 14 and 16 of the Constitution of India. The Court in the facts of that case held that the order granting extension suffers from vice of arbitrariness and there was no justifiable reasons for granting extension and set aside the said order. Various principles governing the subject matter were stated by the Bench after discussing various judgments of the Supreme Court as well as this Court at some length. The relevant part of the judgment is reproduced as under:- “10. The Central Government in exercise of its vested power had framed All India Services (Death-cum- Retirement Benefits) Rules, 1958. Rule 16 of these Rules has a substantial bearing on the matter in the controversy before us which reads as under: "16. Superannuation gratuity of pension.- (1) A member of the Service shall retire from the service with effect from the afternoon of the last day of the month in which he attains the age sixty years: Provided that member of the Service whose date of birth is the first day of a month shall retire from service on the afternoon of the last day of the preceding month of attaining the age of sixty years: Provided further that a member of the Service dealing 12 with budget work or working as a full-time member of a committee which is to be wound up within a short period may be given extension of service for a period not exceeding three months in public interest, with the prior approval of the Central Government. [(a) for an aggregate period no exceeding six months - (i) by the State Government, if the officer is working in connection with the affairs of the State Government; and (ii) by the Central Government, if the officer is working in connection with the affairs of the Union or a State other than the State on whose cadre he is borne; (b) for any period beyond six months - (i) by the State government with the prior sanction of the Central Government, if the officer is working in connection with the affairs of the State; and (ii) by the Central Government, if the officer is working in connection with the affairs of the Union or a State other than the State on whose cadre he is borne.] Provided further that a member of the Service shall not be retained in service whose the age of 60 years except in very special circumstances. Explanation.- For the purpose of this sub-rule, a member of the Service whose date of birth falls on the 1st day of any month shall have attained the age of fifty-eight years on the afternoon of the last day of the preceding month. 13 Explanation. - For the purpose of this sub-rule, a member of the Service whose date of birth falls on the 1st day of May, 1998 and is on extension in service, shall retire from the service on the expiry of his extended period of service or on the expiry of any further extension granted by the Central Government in public interest, and that on such extension in service shall be granted beyond the age of sixty years.] (2) A member of the Service may, after giving at least three months previous notice in writing, to the State Government concerned, retire from service on the date on which such member completes thirty years of qualifying service on the date on which such member attains fifty years age or on any date thereafter to be specified in the notice; Provided that no member of the Service under suspension shall retire from service except with the specific approval of the State Government concerned. (2-A) A member of the service may, after giving three months previous notice in writing to the State Government concerned, retire from service on he date on which he complete 20 years of qualifying service or any day thereafter to be specified in the notice: Provided that a notice of retirement given by a member of the service shall require acceptance by the State Government concerned if the date of retirement on the expiry of the period of notice would be earlier than the date on which the member of the Service could have retired from service under sub-rule (2): 14 Provided further that a member of the Service who is on deputation, a corporation or company wholly or substantially owned or controlled by the Government or to a body controlled or financed by the Government, shall not be eligible to retire from Service under this rule for getting himself permanently absorbed in such corporation, company or body. (3) The Central Government may, in consultation with the State Government concerned and after giving a member of the Service at least three months, previous notice in writing, [or three months pay and allowance in lieu of such notice] require that member to retire in public interest from service on the date on which such member completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice. [Note 1. In computing the period of three months, notice referred to in sub-rule (2) and (3) the date of service of the notice and the date of expiry shall be excluded. Note 2 In the case of a member of the service, who retires under sub-rule (2) or (2-A) or who has retired under sub-rule (3), the date of retirement shall be treated as a non-working day]. [(4) A superannuation gratuity or pension shall be granted to a member of the service who is required to retire under sub-rule (1) of this rule. 11. These rules were amended vide notification dated 30th November, 2005 issued by the Government of India, Ministry of Personal Public Grievances & Pension (Department of Personnel and Training) 15 whereby extension of service for a period not exceeding six months to a member of the service holding post of Chief Secretary to a State Government was provided. 12. By notification dated 12th June, 2006, sub- Rule (1A) has been inserted which reads thus :- "(1-A) Notwithstanding anything contained in sub-rule (1), the Central Government may, if it considers necessary in the public interest to do so, give extension in service-to the incumbents of the posts of the Cabinet Secretary, Defence Secretary, Home Secretary, Director, Intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation for such period as it may deem proper: Provided that the total term of the Cabinet Secretary who is granted such extensions of service shall not exceed three years; Provided further that the total term of the other Secretaries and Directors who are granted such extensions of service under these Rules shall not exceed two years." 12A. Section 3 of the All India Services Act, 1951 also empowers the Central Government to make rules for regulation of recruitment and conditions of service of persons appointed in service after consultation with the Government of the State concerned. Sub-section (1-A) further extends this power empowering the Government to give retrospective effect to the rules so framed from the date not earlier than the date of commencement of this Act. In exercise of the power vested by the Central Government under this provision, they had framed The All India 16 Services (Conditions of Service-Residuary Matters) Rules, 1960. Rule 3 of the Rules, vested power to relax the rules and regulations in certain cases. In this provision, the satisfaction to be recorded is that of the Central Government in line with the principles enunciated in the rules. The Rule reads as under: "Power to relax rules and regulations in certain cases. - Where the Central Government is satisfied that the operation of - (i) any rule made or deemed to have been made under the All India Services Act, 1951 (61 of 1951), or (ii) any regulation made under any such rule, regulating the conditions of service of persons appointed to an All India Service causes undue hardship in any particular case, it may, by order, dispense with or relax the requirements of that rule or regulation, as the case may be, to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. 13. There is no provision specifically empowering the Central Government to grant extension to the members of the service. The Rules require that every employee shall superannuate at the age of sixty but Rule 16(1) of All India Services (Death-cum- Retirement Benefits) Rules, 1958 make an exception that the Government in public interest and limited to the grounds indicated in the proviso could grant extension of service and permit the employee to continue in service beyond the age of superannuation but for a limited period of three months. In the case of Chief Secretary, the extension could be granted in 17 public interest for a period of six months while in the case of Cabinet Secretary, Defence Secretary, Home Secretary, Director, Intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation, covered under sub-Rule (1A) of Rule 16 of the 1958 Rules, extension could be for such period as the Central Government may deem proper. It is implicit from the language of these provisions that the Government has power to extend the tenure of the service of a person to whom these rules are applicable but not beyond the prescribed period specified under these rules. 14. Besides this specific provision, the Central Government has the power to relax the rigours of any rule or regulation in exercise of the powers vested in it under Rule 3 of the All India Services (Conditions of Service-Residuary Matters) Rules, 1960. The very heading and object of these rules is to deal with the residuary matter which are not specifically dealt with or provided for under other rules. Where the Central Government is satisfied that operation of any rule made or deemed to have been made in regulation causes undue hardship in any particular case, it may order to dispense with or relax the requirement of the rules or regulations to such an extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. This rule on its plain reading is to receive a liberal construction. The rule has been worded so widely as to cover unspecified situations. It is a basic rule of service jurisprudence that no rule or provision may comprehend and contemplate all possible situations which may arise. 15. The Petitioners challenge is to the orders issued on 30th November, 2007 extending the period of superannuation for respondent Nos. 6 and 7 respectively. Rule 16 (1) was framed earlier but was 18 amended for the first time on 13th May, 1998, then on 30th November,2005 and finally on 12th June, 2006. By virtue of these amendments, provisos were added and Rule 16 (1A) was inserted but misdescribed in the amended notification as 'substituted'. This Rule provides power to the Central Government to grant extension of service after the date of superannuation on the recommendation of the State Government while under the fourth proviso, the term of Chief Secretary of the State could be extended in public interest for a period not exceeding six months. Under the second proviso, the services of a member of the service could be extended subject to the satisfaction of the conditions postulated therein i.e. he was dealing with the budget work or working as a full time member of a Committee which is to be wound up within a short period could be given extension for a period not exceeding three months in public interest and with prior approval of the Central Government. Rule 16 (1A) contemplates grant of extension to the specified authorities in that Rule. Grant of extension to these designated authorities could be made but the proviso to rule 16 (1A) puts an embargo on grant of extension not to exceed three years in the case of a Cabinet Secretary and for others not in excess of two years. 16. Besides this, Rule 3 of the All India Services (Conditions of Service-Residuary Matters) Rules, 1960 empowers the Central Government to relax the operation of any rule or regulation under any of the Rules framed in furtherance to exercise of power of subordinate legislation. In other words, there is statutory power given to the Central Government which, as contemplated under Section 3 of the Act, is the rule framing authority to relax and/or to grant extension. 17. The contention raised on behalf of the petitioners is that firstly there is no power with the 19 authorities to grant extension beyond the specified period and the Rule should be strictly construed in consonance with the language of the rule and secondly the grounds stated in the Rules have not been specified in the order granting extension. In fact, according to the counsel appearing for the petitioners, the Central Government hardly has the power to grant extension particularly in the facts of the present case. This contention is based upon misconception of the relevant rules and is opposed to the basic concept of service jurisprudence. The rules are to be