Case: Union Of India &amp; Anr Vs. P.K. Roy &amp; Ors

the next contention raised on behalf of the respondents that in any event they should have been given a second opportunity to make representation regarding : (1) inter se- seniority list of the Assistant Engineers of the former Mahakoshal region prepared on February 20, 1962, Annexure R-14, and (2) the final inter se seniority list published on April 6, 1962. With regard to the inter se seniority list it was pointed out by Mr. Asoke Sen that in paragraphs 9 and 10 of its letter dated September 16, 1961, Annexure R-7 the Central Government noticed that no formal orders were issued by the State of Madhya Pradesh prior to October 31, 1956 fixing the rank of the Mahakoshal officer from Serial No. 59 onwards. It was customary in the old State of Madhya Pradesh that the Government issued orders regarding the rank of the officers while making a notification confirming the officers. It was pointed out that if the present rank in the combined gradation list was to be accepted ii would mean that some of the officers who were not selected by the Public Service Commission of the old Madhya Pradesh for permanent posts would be senior to those selected and placed on probation as early as 1953 The normal practice adopted in such cases would appear to be to arrange the names of the officers in the order of appointment to substantive vacancy whether on probation or as confirmed officers. It was suggested by the Central Government that the entire matter should be reviewed by the State Government in the light of the procedure stated in paragraphs 9 and 10 of the letter and necessary changes should be carried out in the combined gradation list. In view of the directions contained in this letter the State Government prepared an inter se-seniority list of the Assistant Engineers of the Mahakoshal region in their letter dated February 20, 1962. It is not disputed on behalf of the respondents that this order of seniority was reflected in the final gradation list published on April.1 6, 1962; but the contention of the respondents is that no opportunity was given to them to make a representation against the inter se seniority list dated February 20, 1962 though Mr. Asoke Sen conceded that he had no quarrel with the principles upon which the list was prepared. Learned Counsel however said that the principles were wrongly applied in particular cases and the respondents should have been given an opportunity of making a representation with regard to the inter se seniority list dated February 20, 1962. With regard to the final gradation list published on April 6, 1962 the contention of Mr. Asoke Sen was that the basis upon which the assumed date, was given in column No. 6 was not set out either in that notification or in the principle specified in the preliminary gradation list. On this point the Solicitor-General said that the final gradation list was prepared and the assumed date in column No. 6 was inserted on the principle of kicking down. It was also pointed out by the Solicitor-General that in the Conference of the Chief Secretaries it had been agreed that in determining inter-State seniority the principle to be taken into account was length of continuous service, whether temporary or permanent in a particular grade. The argument was stressed that the principle could be applied only on the basis of kicking down and that principle was implicit in the preparation of the final gradation list. We are, however, not quite sure whether the Solicitor-General is right in his contention on this point. We think that the final gradation list could have been prepared on the basis of the principle agreed upon in the conference of the Chief Secretaries both on the method of kicking down and the alternative method of kicking up. It is nowhere stated either in the preliminary gradation list or in the final gradation list that the principle of kicking down was adopted in preference to the alternative principle. It was argued by Mr. Asoke Sen that in regard to both these matters the respondents have a right of representation and the final gradation list should have been published after giving them a further opportunity to make a representation. Normally speaking, we should have thought that one opportunity for making a representation against the preliminary list published would have been sufficient to satisfy the requirements of law. But the extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula.The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case. [See the decision of this Court in Shri Bhagwan v. Ram Chand, 1965-3 SCR 218 at p. 222 = (AIR 1965 SC 1767 at p. 1770)]. In view of the special circumstances of the present case we think that the respondents were entitled to an opportunity to make a representation with regard to the two points urged by Mr. Asoke Sen before the final gradation list was published. As no such opportunity was furnished to the respondents, with regard to these two matters we hold that the combined final gradation list dated April 6, 1962, so far as category 6 is concerned, is ultra vires and illegal and that part of the notification alone must be quashed by grant of a writ in the nature of certiorari.The rest of the notification of the State Government dated April 6, 1962, with regard to other categories will stand unaffected. So far as category No. 6 is concerned, the Central Government is directed to give an opportunity to the respondents to make a representation in regard to the two points mentioned in this paragraph and thereafter take steps to finalise and publish the list in accordance with law. 18.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]our opinion, the procedure adopted in this case does not contravene the provisions of Section 115 (5) of the said Act, because it was the Central Government which laid down the principles for integration, it was the Central Government which considered the representations and passed final orders, and both the preliminary and final gradation lists were prepared and published by the State Government under the direction and with the sanction of the Central Government. It is manifest that there has been no delegation by the Central Government of any of its essential functions entrusted to it under the statute. It was pointed out by Mr. Asoke Sen that in its letter dated April 3, 1957 the Central Government had intimated that the work of integration should be left to the State Government. But what was meant by that letter was that only the preliminary work of preparation of the gradation lists on the principles decided upon by the Central Government should be left to the State Governments concerned. It is clear that such work cannot be done by the Central Government itself since the necessary information regarding the officers can be obtained and tabulated only by the States concerned. It was also pointed out by Mr. Asoke Sen that the preparation of the provisional and the final gradation lists by the State Government constituted .a delegation by the Central Government. We do not think there is any substance in this argument. It is not disputed that the provisional and the final gradation lists were prepared by the State Government on the principles laid down by the Central Government itself subject to on change in the matter of determining seniority and the provisional gradation list was sent for approval of the Central Government together with representations made by the officers concerned for being dealt with and decided upon by the Central Government. The principle of the maxim delegatus non potest delegare has therefore no application to the present case. The maxim deals with the extent to which a statutory authority may permit another to exercise a discretion en trusted by the statute to itself. It is true that delegation in its general sense does not imply a parting with statutory powers by the authority which grants the delegation, but points rather to the conferring of an authority to do things which otherwise that administrative authority would have to do for itself. If, however, the administrative authority named in the statute has and retains in its hands general control over the activities of the person to whom it has entrusted in part the exercise of its statutory power and the control exercised by the administrative authority is of a substantial degree there is in the eve of law no delegation at all and the maxim delegatus non potest delegare does not apply [SeeFowler (John) and Co. (Leeds) v. Duncan. 1941-Ch. In other words if a statutory authority empowers a delegate to undertake preparatory work and to take an initial decision in matters entrusted to it but retains in its own hands the power to approve or disapprove the decision after it has been taken, the decision will be held to have been validly made if the degree of control maintained by the authority is close enough for the decision to be regarded as the authoritys own. In the context of the facts found in the present case we are of opinion that the High Court was in error in holding that there has been an improper delegation of its statutory powers and duties by the Central Government and that the final gradation list dated April 6, 1962 was therefore ultra vires and illegal. Even on the assumption that the task of integration was exclusively entrusted to the Central Government, we are of the opinion that the steps taken by the Central Government in the present case in the matter of integration did not amount to any delegation of its essential statutory functions. There is nothing in Sections 115 or 117 of the said Act which prohibits the Central Government in any way from taking the aid and assistance of the State Government in the matter affecting the integrations of the services. So long as the act of ultimate integrations is done with the sanction and approval of the Central Government and so long as the Central Government exercises general control over the activities of the State Government in the matter it cannot be held that there has been any violation of the principle delegatus non potest delegareNormally speaking, we should have thought that one opportunity for making a representation against the preliminary list published would have been sufficient to satisfy the requirements of law. But the extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula.The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case. [See the decision of this Court in Shri Bhagwan v. Ram Chand, 1965-3 SCR 218   at p. 222 = (AIR 1965 SC 1767   at p. 1770)]. In view of the special circumstances of the present case we think that the respondents were entitled to an opportunity to make a representation with regard to the two points urged by Mr. Asoke Sen before the final gradation list was published. As no such opportunity was furnished to the respondents, with regard to these two matters we hold that the combined final gradation list dated April 6, 1962, so far as category 6 is concerned, is ultra vires and illegal and that part of the notification alone must be quashed by grant of a writ in the nature of certiorari.The rest of the notification of the State Government dated April 6, 1962, with regard to other categories will stand unaffected. So far as category No. 6 is concerned, the Central Government is directed to give an opportunity to the respondents to make a representation in regard to the two points mentioned in this paragraph and thereafter take steps to finalise and publish the list in accordance with law.