IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.02.2011 CORAM THE HONOURABLE MR. JUSTICE VINOD K.SHARMA W.P.Nos.25107 & 25108 of 2010 and M.P.Nos.1 & 2 of 2010 S.Bhuvaneswari ... Petitioner in W.P.No.25107/10 N.Ramachandran ... Petitioner in W.P.No.25108/10 Vs. 1. The Government of Puducherry, Rep. by its Chief Secretary, Chief Secretariat, Puducherry. 2. The Secretary, Legislative Assembly Secretariat, Puducherry. 3. K.Mohan, Tamil Reporter, Legislative Assembly Secretariat, Puducherry. ... Respondents in both W.Ps. Writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ of Certiorari, calling for the records relating to the order bearing ref.No.35/SCY/PA/IAS/2010 dt.09.09.2010 issued by the second respondent and to quash the same as being illegal, arbitrary, contrary to G.O.Ms.No.4 dt.28.11.1978 and consequently allow the petitioner to perform the functions of Head of Office. For petitioners in : Mr.N.G.R.Prasad for both W.Ps. M/s.Row Reddy For respondents 1 & 2 : Mr.D.Sreenivasan, G.P., in both WPs. Puducherry For respondent-3 : Mr.G.Masilamani, S.C. for in boh Wps M/s.G.M.Mani Associates **** https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER As the common question of law and facts are involved in both the writ petitions, common order is being passed. For the sake of brevity, facts have been taken from W.P.No.25108 of 2010. 2. The petitioner is aggrieved by the order dated 09.09.2010 vide which the respondent No.3 Thiru K.Mohan was declared as "Head of Office" in respect of Legislative Assembly Secretariat. The impugned order reads as under: "No.35/SECY/PA/LAS/2010 GOVERNMENT OF PUDHCHERRY LEGISLATIVE ASSEMBLY SECRETARIAT **** Puducherry, dated 9th September, 2010 Sub: Declaration of Head of Office – Orders – Issued. ----- ORDER: The duties attached to the post of Editor of Debates have increased substantially over the years. As a result, the meetings of various Legislature Committees particularly of Public Accounts Committee and Estimate Committee could not be held as often as required and also the other works relating to Legislature matters such as publication of 'Official Reports' suffer. With a view to strengthen the Committee system and to speed up the process of publication of Official Reports it has been decided to withdraw the powers of Head of Office now with the Editor of Debates and to delegate it to one of the Tamil Reporters. 2. Accordingly, under rule 14 of the Delegation of Financial Power Rules 1978, Thiru K.Mohan, Tamil Reporter is declared as Head of Office in respect of Legislative Assembly Secretariat. He will also be the Controlling Officer under SR 191 for the purpose of countersigning T.A. Bills, MR bills, etc. in respect of Gr.C and D staff of Legislative Assembly secretariat. As already said in the preceding paragraph, the power of Head of office now conferred on the Editor of https://hcservices.ecourts.gov.in/hcservices/ Debates is withdrawn. 3. This order will come into force with immediate effect. 4. This issues with approval of Chief Secretary and Finance Department. Sd/- (M.SIVAPRAKASAM) Secretary" 3. The petitioner was appointed as Junior Reporter in the Special Branch, Police Department, Government of Puducherry. The petitioner was promoted as Tamil Reporter in the Legislative Assembly Secretariat, Government of Pudhucherry on 02.05.1980. The next channel of promotion for the post of Tamil Reporter is to the post of Editor of Debates. The petitioner was promoted to the post of Editor of Debates in the year 2000. 4. The case of the petitioner is that under Rule 14 of the Delegation of Financial Powers Rules, (hereinafter referred to as Rules), the Administrators, Head of the Departments are vested with power to declare any Gazetted Officer subordinate to them as the Head of Office for the purpose of these rules. Rule 14 of the Rules reads as under: "14. Head of office Departments of the Central Government, Administrators and Head of Departments shall have powers to declare any Gazetted Officer subordinate to them as the Head of an Office for the purpose of these rules: Provided that not more than one Gazetted Officer shall be declared as Head of Office in respect of the same office or establishment, unless such office or establishment is distinctly separate from one another." 5. The case of the petitioner is that in exercise of power under Rule 14, the Chief Secretary to Government of Puducherry declared the Editor of Debates in the Legislative Assembly Department, Pondicherry, as "Head of Office" and "Drawing and Disbursing Officer" for the Legislative Assembly Department, Pudhucherry for the purpose of the Delegation of Financial Powers Rules, 1978, and the General Financial Rules, 1963. 6. In pursuance to the notification, the petitioner was given the duties of "Head of Office" as also "Drawing and Disbursing Officer". The post of "Tamil Reporter" classified earlier under the category of Group "C" Non-gazetted post was upgraded to Group "B" post. By G.O.Ms.No.75 dated 30.09.2005, the post of Tamil Reporter was thereafter declared as Gazetted https://hcservices.ecourts.gov.in/hcservices/ post. The notification issued under G.O.Ms.No.75 dated 30.09.2005 reads as under: "GOVERNMENT OF PONDICHERRY ABSTRACT Confidential and Cabinet Department – Pondicherry – Conferment of Gazetted status to the posts of Tamil Reporter and English Reporter – Orders – issued. ---------------------------------------------- CONFIDENTIAL AND CABINET DEPARTMENT G.O.Ms.No.75 Pondicherry dt.30.09.2005 Read: Letter No.U.10415/2/93/GP, dated 19.08.2005 of the Govt. of India, Ministry of Home Affairs, New Delhi. **** The proposal of conferring gazetted status to the posts of Tamil Reporter and English Reporter in the Legislative Assembly Department, Pondicherry has been engaging the attention of the Government for some time. Accordingly, necessary proposal was sent to the Government of India seeking their approval in this regard. The Government of India, Ministry of Home Affairs have accorded their approval for this proposal vide letter read above. 2. The Lieutenant Governor, Pondicherry is therefore pleased to confer Gazetted status to the posts of Tamil Reporter and English Reporter in the pay scale of Rs.6,500 – 200 – 10,500 in the Legislative Assembly Department, Pondicherry with immediate effect. /By order of the Lieutenant Governor/ sd/- (H.DASARATHAN) UNDER SECRETARY TO GOVERNMENT" 7. It was after declaration of the post of Tamil Reporter, as Gazetted post, the impugned notification was issued declaring the third respondent as "Head of Office". 8. The petitioner being aggrieved by the divesting of powers of "Head of Office", has approached this Court by pleading in the affidavit that he is working in the post of Editor of Debates for more than 10 years to the entire satisfaction of his https://hcservices.ecourts.gov.in/hcservices/ superior. The petitioner was discharging functions of "Head of Office" which have now been entrusted to the third respondent without issuing notice to the petitioner. 9. The petitioner also made a detailed representation for restoration of powers of "Head of Office" to him, but no reply has been received. 10. It is also pleaded by the petitioner that the impugned order is illegal and arbitrary being contrary to G.O.Ms.No.4 dated 28.11.1978. The impugned order is challenged by the petitioner on the ground that the impugned order is in violation of principles of natural justice, as no notice was issued to the petitioner before withdrawing powers of "Head of Office" from the petitioner. 11. That the impugned order has also been challenged on the ground that it is arbitrary and violative of Article 14 of the Constitution of India, in as much as powers of Head of Office has been given to the third respondent who is only a "Tamil Reporter" which is a feeder post for the post of Editor of Debates. The impugned order therefore amounts to reversion, which cannot be sustained in law, especially when there is no materials to show that workload of Editor of Debates has increased to that extent, which renders the petitioner unable to discharge the duties as "Head of Office". 12. The case of the petitioner is that, in case it is held that the workload of Editor of Debates is increased, then additional post should have been created instead of taking away the work of "Head of Office" from the petitioner. 13. The writ petition is opposed by the third respondent on the ground that the petitioner was appointed as "Head of Office" in exercise of power under Rule 14 by the Secretary, who is the administrative head of the department, in view of the fact that there was no other Gazetted post as on 30.09.2005. The post of Tamil Reporter and English Reporter were declared as Gazetted post only on 30.09.2005. It is within the power of Secretary being administrative head, to declare any Gazetted officer subordinate to him, to be the Head of Office for the purpose of rules. 14. The stand of the third respondent is that the petitioner cannot claim the post of Head of Office merely on the ground of seniority or for the reason that he is holding the higher post, then the respondent No.3 in view of power vested with the administrator under rule 14 of the Rules. 15. The stand of the respondent No.3 is that the impugned order, cannot be said to be in violation of principles https://hcservices.ecourts.gov.in/hcservices/ of natural justice, as it is not a case of reversion as claimed by the petitioner. 16. The second respondent also opposed the writ petition by taking a stand in the counter, that the impugned order has been passed to minimize the procedural delays, and to speed up the process of decision making in routine matters. 17. The stand in the counter is that the power of Head of Office was entrusted to the petitioner, as at that time, Editor of Debates was the only Gazetted post in the Legislative Assembly Secretariat besides the Secretary post. In the year 1987, the functions of "Drawing and Disbursing Officer" were taken away from the Editor of Debates, and given to the Superintendent who was conferred with the Gazetted status. 18. The stand of the second respondent in the counter is that the impugned order has been passed in view of the fact that the work of Editor of Debates has increased manifold. It is also averred in the counter that functions of Head of Office are mainly related to Group C and D categories of staff and higher categories of Group A and B are under the administrative control of Head of the Department. 19. The stand taken by the second respondent further is that the "Head of Office" is neither a post nor a status, but only an allocation of work for the smooth transaction of business of the Government. It is for that reason that powers vests with the Head of department to declare any Gazetted officer subordinate to him to be the Head of the Office. 20. The contention of the learned counsel for the petitioner that the impugned order is violation of principles of natural justice, is denied on the ground that it is merely re- allocation of work which does not confer or take away the status of the person. 21. The learned counsel for the petitioner has challenged the impugned order by contending that G.O.Ms.No.75 vide which the petitioner was given charge of Head of Office has not been specifically withdrawn, nor any declaration has been made in the impugned order. Therefore, the impugned order cannot be sustained. 22. It is the contention of the learned counsel for the petitioner that in the absence of withdrawal of previous order, Rule 14, issued under it violates the rule itself as only one person can be the Head of Office and not more than one. https://hcservices.ecourts.gov.in/hcservices/ 23 This contention of the learned counsel for the petitioner is deserves to be noticed to be rejected. Once a subsequent order is passed, superseding the earlier order, it automatically ceases to exist. It cannot be said that the previous order is still in force as contended. 24 The reading of the impugned order shows that the object of passing the order was to withdraw powers of Head of Office, from the "Editor of Debates" and to give it to the "Tamil Reporter". Thus, the contention of the learned counsel for the petitioner cannot be accepted, that the impugned order is violative of rule 14 of the Rules. 25 The learned counsel for the petitioner thereafter contended that once power was entrusted to the petitioner by the Head of the Department, in view of the fact that the petitioner was the Gazetted officer subordinate to him, it was not permissible to delegate such powers to the Officer lower in rank, who is not directly subordinate to the Head of the Department. 26 This contention again cannot be sustained in law. The reading of the Rule 14 would show that the administrator and Head of Department is vested with powers to declare any Gazetted officer subordinate to them as Head of Office. The words used in the Rule is "any Gazetted Officer", which means that officer may not be immediate subordinate to him, but should be subordinate to the Head of Department. The contention of the learned counsel for the petitioner therefore cannot be accepted in view of the clear wording of Rule 14. 27 The next contention of the learned counsel for the petitioner that by way of impugned order, different interpretation has been given to the Rule at two different times. The contention of the learned counsel for the petitioner was that on earlier occasion Rule 14 has been interpreted to give powers to the Editor of Debates, by treating him to be immediate subordinate, whereas now a different interpretation being given. 28 In support of this contention, the learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court in the case of State of Uttar Pradesh and another Vs Santosh Kumar Mishra and another ((2010)9 SCC 52). 29. This contention of the learned counsel for the petitioner again cannot be accepted. The counter filed by the second respondent makes it clear that the petitioner was declared as Head of Office as he was only Gazetted Officer. On an earlier occasion, when Superintendent of Office was declared Gazetted Officer then the powers of Drawing and Disbursing Officer was https://hcservices.ecourts.gov.in/hcservices/ given to him. Therefore, it cannot be said that the post of "Head of Office" is post in the cadre, but is actually distribution of work under the rules. 30 Now, Tamil Reporter has been declared as Gazetted post, he is entrusted with power and declared as Head of Office to deal with C and D categories of employees. The petitioner therefore does not have to report to him, as he would have no powers in this regard. 31. The contention of the learned counsel for the petitioner that the impugned order amounts to the demotion, also cannot be sustained as the petitioner is not to report to the "Head of Office" as the Head of Office, the third respondent is to exercise power only over C and D categories of employees whereas Officer falling in the category A & B would report to the Head of Department. 32. The contention of the learned counsel for the petitioner that the impugned order is violative of principles of natural justice also cannot be sustained as the order is for allocation of work between the officers, which does not confers any status on the person delegated with such powers. In normal administrative function, the principle of natural justice do apply as no civil right of the petitioner has been affected by the impugned order. 33. The Hon'ble Supreme Court in the case of K. Gopaul v. Union of India and others (A.I.R. 1967 SC 1864) has gone to the extent of holding that even the post Head of Department is not a post but merely status and allocation of work and merely by posting when a person ceases to be Head of department it would not give any enforceable right to him to challenge the transfer on this ground. The findings of the Hon'ble Supreme Court reads as under: "5. On behalf of the appellant, these Orders of the Government have been challenged on three grounds. The first ground urged is that, by transferring the appellant and posting him as Accommodation Controller, he has been reduced in rank and this reduction in rank was ordered without complying with the provisions of Article 311 of the Constitution. This submission is based on the circumstance that, according to Entry 13 in Appendix II which is referred to in subsidiary definition (ii) of Rule 9 of Part I of the Fundamental Rules of the Madras Government, the IGR has been declared to be the Head of Department, while the Accommodation Controller is not the Head of https://hcservices.ecourts.gov.in/hcservices/ a Department. We cannot accept the submission that the mere fact that the post of Accommodation Controller, to which the appellant has been transferred, has not been designated as the post of a Head of the Department necessarily involves any reduction in rank. In fact, it is well known that in Government service, there may be senior posts, the holders of which are not declared as Heads of Department, while persons holding comparatively junior posts may be declared as such. The rank in Government service does not depend on the mere circumstance that the government servant, in the discharge of his duties, is given certain powers. In the case of the appellant, it is to be noticed that, from the very initial stage, it was laid down that, on being transferred to the post of the Accommodation Controller, he was still to continue to draw pay in the scale of Rs 1200- 100/2-1400 which was the scale in which he was drawing his pay while working in the post of IGR. The appellant was, thus, not sent to a post carrying a lower scale of pay. This point was further urged on the basis that the post of Accommodation Controller was held by an Officer who, on relief by the appellant, was promoted to the post created in the grade of a Deputy Secretary to Government (non-IAS). From this fact it was sought to be inferred that the post of Accommodation Controller was lower in rank than the post of a Deputy Secretary to Government, and it was urged that the post of IGR was of a rank higher than that of a Deputy Secretary. The argument completely fails in view of the appellant’s own affidavit showing the method of recruitment to the post of IGR. The appellant stated that the method of recruitment for the post of IGR was from two sources. One was by promotion of the Inspector of Registration Offices or District Registrars, and the other recruitment by transfer from Deputy Collectors or Assistant Secretaries to Government. The second method of appointment to the post of IGR makes it clear that this post is equated with that of a Deputy Collector or Assistant Secretary to Government, because persons holding those posts can be appointed as IGR by mere transfer. If the post of IGR had been senior to that of the Deputy Collector or https://hcservices.ecourts.gov.in/hcservices/ Assistant Secretary to Government, the appointment could not have been made to that post by mere transfer, but would necessarily have involved promotion. The submission made on behalf of the appellant that the post of IGR is higher in rank than that of a Deputy Secretary is thus clearly wrong. In fact, the post is lower in rank than that of a Deputy Secretary and is equated with that of an Assistant Secretary. It has not even been suggested anywhere that the post of Accommodation Controller is lower in rank than that of an Assistant Secretary to Government or a Deputy Collector. On the other hand, the information given to us in the course of the arguments showed that, under the Rules, the Accommodation Controller works directly under the control of the Government, while the IGR is subordinate to the Board of Revenue. We, consequently, find no force at all in the plea that the posting of the appellant as Accommodation Controller, when he was holding the post of IGR amounted to reduction in rank." 34. Therefore, in view of the decision of the Hon'ble Supreme Court shows that when the post of Head of Department is not held to be promotional post or a post giving status which cannot be taken away, the "Head of office" under no circumstances can be treated to be a post or status, the withdrawal of which could give any enforceable right to the petitioner to challenge the order. 35. Consequently, the writ petition being without any merit which is ordered to be dismissed, but with no order as to costs. 36. W.P.No.25107 of 2010: The petitioner has challenged the impugned order on the ground that the respondent No.3 has been appointed as "Head of office" by ignoring seniority of the petitioner. 37. In view of the detailed order passed in W.P.No.25108 of 2010, there is no force in this writ petition, as the post of "Head of Office" is not a promotional post, giving any better status to the person as "Head of Office" under the Delegated Financial Rules. The petitioner therefore cannot challenge declaration only on the ground of seniority. https://hcservices.ecourts.gov.in/hcservices/ 38. Consequently, this writ petition is ordered to be dismissed. No costs. vaan Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Chief Secretary, Government of Puducherry, Chief Secretariat, Puducherry. 2. The Secretary, Legislative Assembly Secretariat, Puducherry. + 1 cc to the Senior Government Pleader-cum- Senior Public Prosecutor for Pondicherry SR No.1449812192 & 12193 + 2 ccs to M/s. G.M. Mani Associates, Advocate SR No.12005 & 12006 PA(CO) SR/3.3.2011 Common order in W.P.Nos.25107 & 25108 of 2010 and M.P.Nos.1 & 2 of 2010 https://hcservices.ecourts.gov.in/hcservices/